Skip to main content

tv   Defense Advisory Committee Meeting on Sexual Assault in the Military  CSPAN  February 14, 2020 9:02am-12:29pm EST

9:02 am
[inaudible conversations] [inaudible conversations] [inaudible conversations]
9:03 am
>> and once again, we are live here on c-span2 for the 16th public meeting of the defense advisors committee on prosecution and defense of sexual assault in the armed forces. >> this meeting is open. >> before we get started, apparently in order to speak, you need to hit request. the green, and when you're done-- that seems odd, in any event, mr. sullivan, thank you, and good morning. i want to welcome the members and everybody in attendance today on valentine's day to the 16th public meeting of the defense advisory committee on the investigation, prosecution and defense of sexual assault in the armed forces. or da krchc. >> miss cannon. >> here. >> miss garvin. >> here.
9:04 am
>> mr. cramer. >> here. >> ms. long. >> here. >> mr. markey. >> here. >> dr. markowicz. >> here. >> general swank. >> present. >> doctor spahn. >> here. >> judge grimm by telephone? >> telephonically here. >> miss tocash by telephone? >> i'm here. >> great. judge, chief and mckinley and judge walton couldn't be in attendance, but with 11 in presence we have a quorum. it was for fiscal year 2015 as amended-- our mandate was to advise the secretary of defense on the investigation, prosecution and defense of allegations of sexual assault and other sexual misconduct involving members of the armed forces. today's meeting is being transcribed and a complete written transcript will be
9:05 am
posted on the dacipd website. and they've not had the opportunity to hearing from presiding judges. we'll hear from two army judges, retired navy judge and retired air force judge and the committee looks forward to hearing from each of you. and following, they will discuss the committee's testimony and take a break for lunch. in the afternoon, the committee will deliberate and vote on whether to approve the dac i-pi ipad. and next, they'll provide the committee with a presentation on the fiscal year 2020nd a. a provisions that affect the
9:06 am
dac-ipad. there's a request to provide public comment at today's meeting and we'll hear that after the colonel's presentation. if a member of the audience would like to make a public comment, please direct your request to the dac-ipad, steven ware, written comments could be received for consideration. and director will wrap up the meeting. judges, we are ready to begin. we have your bios, but if you could please provide a short description of your military career, military judicial experience and any training you received as a military
9:07 am
>> i'm a military judge and spent approximately nine years on the bench between the judiciary and the appellate court. prior to becoming a military judge, i attended the judge's course in charlottesville. while on the bench attended various training and some focused on sexual assault and other training such as evidence, scientific evidence, courtroom curt and drug cases, but other-- i'm sorry. thank you. >> during the course of my career i spent five years prosecuting sexual assault cases. thank you. >> hello, i'm air force retired. i retired from the united states air force after-- on the trial bench and served as advocate twice and served as
9:08 am
prosecutor and defense counsel and now work for-- [inaudible] >> hi, i'm jeff nantz. i retired after 30 years in the army. 25 of those years was, i was involved with military justice in some form or fashion and more than 13 as a military judge. the training we received included what's already been talked about, the military judge's basic course and then at least twice annually refresher training on various issues of criminal law and military judge business including training at the national judicial college in reno, nevada. >> hi, i'm andrew glass, 26
9:09 am
years in the army. supervised prosecutors and defense counsel, was a trial judge on three different occasions, at three different locations, culminating in being a chief judge with jeff. went to the military judge's course in charlottesville which is is three-week course. twice in between my first time as a judge and coming back to the trial judiciary, i was a staff judge advocate. and so, they made you go back again. in terms of sexual assault training within the context of being a judge, i tried to remember when we started doing specialized sexual assault training, typically in august of the year. it's a week long course. i think it's four or five times, jeff may have a better memory, when we would go and have intensive courses discussing the sexual assault
9:10 am
cases, discussing evidentiary issues, for example, and kind of procedural issues that were germane to that issue. i also went to several national judicial college courses, the ones i recall are a death penalty case, i was actually there with jeff and advanced evidence and then some judicial art course. >> i think the sexual assault training started in either 2011 or 2012 for judges. >> and i say for jeff. we both attended and presented and moderated panels, et cetera. thank you very much for being here. this committee has in the past heard from, we've heard from victims, we've heard from accused, from victim's counsel and heard from defense attorneys and prosecutors and investigators. this is our first chance to really have questions for people who kind of have seen the whole thing being put together. so i open it up to questions
9:11 am
from the committee. >> then i'm going to start. what has been your experience with the vlc's and the svlc's? has it changed how the courts marshal procedure in your opinion with witness preparedness or surprising seeming to come out for which the complaints have not been prepped? and if each of you could take a moment? feel free to jump in, gents. >> the vlc program really changed sexual assault cases in my view. and prior to vlc's being
9:12 am
involved and i look back at even my time in prosecuting these cases, it was a free-for-all against the victim where often times the victim, male or female, seemed to be sort of dragged through the mud. the vlc's really have stepped up and are protecting them. and to i think an extreme now because when i prosecuted cases, the victims would come in generally and testify in articles 32. that was a good opportunity as a prosecutor to see how that individual would fare under cross examination. they don't have that opportunity any more, most victims will assert their rights to not come to an article 32. that they come into court, it
9:13 am
seems sometimes unprepared for what is going to happen and how the questions will come at them. as a judge, cross examination often was the opportunity for defense counsel to really point out how they prepared with the prosecution and completely refused to talk with the defense. i think that's a disadvantage to the government, to their case, if the victim has never had that opportunity and refuses to, as is their right, understandably so, there have been some bad scenarios with article 32's, as we know, for the victims being cross examined. but-- and i'm using the phrase victim, alleged victim, but t the-- i think in terms of preparation for trial, all they're getting is the ability to prepare with the government and in some ways, that is not doing them a service, because they are not
9:14 am
having that opportunity for cross examination at any point, or even interviews with the defense. i'll mention that i am-- i now have my own practice. i'm a criminal defense attorney, sexual assault cases are something i defend. and it can be difficult on both sides if that opportunity is not there for victim intervie interviews, understanding that it's their right, but i think that it would help if they-- for the process, would have interviews with counsel on both sides. because then it looks as if, and i saw this as a judge, it looks as if they have something to hide. and we know they don't in most cases, but perhaps they do. i don't know, but it just seems that there's something missing from the process. all you get as a defense counsel now is the cd from an interview with ncis, osi, and i
9:15 am
don't think they're asking the tough questions either during the investigation. thank you. >> since i asked question-- >> i think the vlc's have served a great purpose in empowering victims and in preparing them for what they're about to face. the process is a difficult a process to go through and one of the best i think so this that the vlc's do is to -- is to very realistically describe what that process is going to be like and i think that's empowering for victims. i think before the vlc's it was kind of up to the variability, the personality of the individual prosecutor in the case, who was pretty much charged with taking care of the victim, but the victim was not the prosecutor's primary concern and so, having somebody whose primary concern is taking care of the victims has had a positive effect.
9:16 am
as a judge, i did not find that it was skewing the results one way or the other. i do believe, as captain o'brien says, you do have less opportunities to evaluate that testimony and that's a double edged sword. as she said, it does have an impact on credibility, it certainly can be woven by a good defense counsel into a narrative that is not supportive of the victim, but by the same token, the vlc's can advise and the victim can decide to testify. i've seen that happen to great effect as well and to engage in interviews and so, i i've seen both. by and large, i think it has been a positive development. i know as in the earlier days of the program when they were coming directly out of my manning, it was a difficult transition, but i think the
9:17 am
transition proved to be worth it. >> colonel nantz. >> yes, ma'am, i agree with what's been said so far. you know, my experience was that early on in the implementation of the program, the vlc's almost uniformly in the army had no criminal law experience so they were coming in advising alleged victims about things that they really had only a very narrow understanding of. and sometimes, as best said, that advice would-- which was designed to protect that alleged victim from abuse, would run counter to the overall object of that victim of having the perpetrator convicted. and so, not understanding the criminal court process, they would sometimes give advice that didn't necessarily advance
9:18 am
the ultimate goal of that victim. that said, as time went on, i believe that the training got better, the lessons learned from implemented in the training, and the advice got better and things sort of evened out. that was my experience. >> so, without-- i'll just underline a couple of things said previously and then hit a couple different points. i think access when you're a judge matters because your job is to make sure there's a fair trial and if there's something, for example, the defense hears for the first time in an open courtroom, you have to do something to accommodate that issue, whether that is giving a delay, whether that-- and sometimes it can be a sub ngs sta -- substantial delay because there's some new nugget that comes out. i think somebody who is understanding process matters. having said that, that's a
9:19 am
double-edged sword. here is why it's a double-edged sword in the army. the army does not have enough experienced trial litigators. it is near crisis. the problem is that as kind of the victim advocate program has waxed and waned, it's become politically more necessary to put people with a lot of trial experience in the victim's realm. that has a positive benefit as discussed by jeff and the other panel members. it can have a negative benefit because bob or mary, who have tried a bunch of cases are no longer trying cases and we don't have that many bob's and mary? >> if it's the first two or three or five cases. defense counsel which are narrow and complicated cases
9:20 am
often involving complicated discovery issues, complicated expert issues, you can't be doing this for a first time. you just can't. and do it well. and when the evidence is close ultimately what that can result in is acquittal. sometimes when it otherwise wouldn't be an acquittal. the other thing i've soon as a judge that again derails and slows down the process is, in the context of interviews and ongoing conversations with the alleged victim, sometimes material will come out that's, what's called brady material, those of you who are lawyers understand what that means. it just means exculpatory material, it's required to be disclosed. my experience again is often that material is disclosed either during trial or on the eve of trial. and so the reason that the trial gets pushed back is if it's exculpatory material that involves the witness testimony,
9:21 am
you're talking about a lengthy delay because you have to go through a lengthy process that does not work. and the contracting process, to get expert witnesses does not work in the army. it just doesn't. it can take forever. it can result in circumstances where you have much more delay than you'd otherwise have to do because of trial dockets. and so the problem is, when this process is kind of lurching to trial and this knew material is many kohling-- coming out and changes the context of the trial. you're trying to do with this and sometimes money and so you have the opportunity to address those issues. so those are the things that off the top of my head seem to me-- and i would tell you that the victim's practices have gotten better. this is what i need for you when you help your client and it's gotten better, but in the
9:22 am
context of the entire system, it has created challenges that are kind of unforeseen challenges. >> judge grimm on the phone has a question. >> thank you. thank you very much. i appreciate your comments and i think that you have spoken to-- >> judge grimm, can you speak a little more loudly, please? >> yes, yes, is that better? >> not really. is that louder? >> no, judge. yes, can you hear me? >> you're really going to have to shout. >> all right. can you hear me now? why don't you pass on my question and go on to the other panel members, for some reason i'm not-- i'm talking pretty loud and i know that this phone will work this way, but i think it's on the receiving end maybe something going on, i apologize, why don't you go onto the next person. >> maybe he could send in the
9:23 am
question? >> i think we've got you a little louder, can you repeat the question? >> can you hear me now, is it better now? >> yes. >> okay. so my question is this, we have noticed that in the statistics that show the number, the outcomes of trials, when they go to trial, that the conviction rate on the offenses, the most serious ones, the sexual assault soe offenses, the overall rates, particularly in the army, is shockingly low when compared to conviction rates certainly in the federal system, where we don't have sexual assaults that often, but in the state system as well. and one of the things that we as a group have been trying to do is to try to come up with an
9:24 am
explanation for whatever that may be and there are many factors, no doubt, but part of it suggests that maybe it has something to do with the experience of the prosecution and frequency with which the military assignment system, you get a job, you're in two years, maybe three, boom, you're off to something else and career progression, you're moving out of it and you may come back to it. so you don't get the situation like we have on our committee and a career prosecutor who has an unbelievable career's worth of being in court dealing with cases. and i wonder whether or not there's some correlation between the lack of experienced prosecution and people who develop expertise over a length
9:25 am
of time that then an n i -- allows them to teach others and whether there's a correlation between that and what might be the low conviction rate. >> so first of all, to me is interesting that you reference miss tocash and i was her first supervisor in the army. >> you did a good job. >> well, i can take credit for that, but that doesn't seem honest. she's always been very talented. so the talking point you'll always get about this is that the army tries cases that the civilians don't. and that is a truth. i will tell you as a staff judge advocate, a former staff judge advocate, i would try cases on some occasion, i wouldn't say habitually, that the civilians wouldn't take and sometimes they'd be tried to acquittal and sometimes tried to conviction and we can talk about that process and how you approach that process, but to me, that's not the overriding factor. the overriding factor is
9:26 am
ms. tocash used to be an f bp's and used to be-- ton, there are not that many in the army, but people who like to try cases like to try cases and when you tell them that they have to be the chief of ad law after the graduate course, it's like telling a cook he has to be an auto mechanic. and the reason that the judge advocate general's court tells people they have to do that it's a personnelist approach to people. i've got x number of slots. the pinnacle job in the jag corps is not to be a judge, an fvp it's to be a judge advocate. and in the jag corps there's five and what you do operationally and a judge
9:27 am
advocate. it's a truth. you look at why is this? i think to fix this, you have to break some china. you have to recognize that most of the trial advocates find now, and you could certainlily formally talk to people, some of whom are on your panel would have said if you just tell me i'm going to be an inge major my whole life and i get to try cases, that's what i want to do, a lt. colonel. i was told i had to leave being a trial judge to be a staff advocate or quote, you probably won't get promoted. now, there's a lot of fixes to that. there are people sitting in, who sat promotion boards, you can give instructions to boards about relative importance of jobs, you can change your assignment cycle. speciallization in the jag corps is perceived as bad or unnecessary. ironic to me that we have contract specialists who spend most of their time in
9:28 am
contracts. there's a incremen incrementali there just is. if 2000, i don't know if jeff was on the panel, but on blue ribbon panel. i love blue ribbon panels. but we had this conversation in 2000 and not much has changed. the fvp program is a bandaid. this is what i mean, there's a lot of good talented, and some who aren't that good. the problem is there's no fvp for life program. or go be an fvp and we'll make you a senior defense counsel. we'll keep you in this realm where you want to be. we'll recognize your particular specialty and build on that specialty. i honestly don't think that exists in the civilian world. there's a lot of explanations for that that you'll hear. we have to be able to go down range and try cases. sure we do.
9:29 am
and you don't need that much experience, i've been an sj. i can tell new an hour what you need to know to be an sj and advise people, it helps. you can call mr. nance if he's a civilian working for you and say, how does that work? because this is the way that this society works. we reach out to expertise. i can't tell you the number of times i was told i needed to do claims or ad law because it was good for my career. colonel, okay, but there are an awful lot of prosecutors who don't stay in the corps program. who you do you fix that? i don't know the way that society fixes that with specialization. when i walk into a room i don't want to hear that my served in just got off of a tour again as an auto mechanic. i want to know that they know
9:30 am
how to fix me up to try cases and that just doesn't exist and i think it requires significant change. another piece of china that you might consider is we believe that the province of military justice is only green suitors or whatever the color of the suit is and now the suit changed it seems like 30 times since i was in. i'm happy i don't have to buy the uniform anymore, but there are almost no civilians, except at a very high level, highly qualified experts informing the system on a day-to-day basis. and what you'll hear is we can't deploy that. yeah, you can. you do it now. you take civilians down range now. you civilian defense counsel go in theater and try cases. in terms of, judge, i think it's a great question. i think it's fixable. i think it takes the will to fix it. i know the current army system and i know very little about it, has a pilot program.
9:31 am
and i understand that's how the army does things, we pilot things. that the analogy to me is really a navy analogy. we're trying to turn a battleship going full speed. i think it requires more drastic change, a greater commitment to changing how we approach prosecution and defense work. and if requires money. it always requires money. >> anybody have anything to either add or contribute. >> i would say my experience in the air force has been marginally different than my army colleagues. i do not recall a case where the performance of the special victims' prosecutor was the reason for an acquittal. my experience has been that they've been highly professional, highly effective and highly available doing tons of cases. i think the real challenge for the air force program and
9:32 am
senior prosecutors in general it's such a grueling job and it involves tons of travel and the air force does cases more expeditionary at the various bases opposed to centralized as other bases do. and makes that assignment a particularly grueling one as a circuit counsel and i think we lose some good litigators, it's at a point in their lives where they're trying to have families and so they have to make some choices there as to what they pursue. so, anything we do in the paradigm to make that jobless grueling and more attractive, i think we could attract some better litigators there, but i think currently, at least in the air force, we're tracking some of the best and brightest litigators, the special prosecutors and i've seen them be very effective. >> do you want to comment on
9:33 am
the judge's question about-- >> there are any number of factors that go into the increased acquittal rate. i would say the ayn crea-- increased is beyond a doubt a high standard and court members do a very meticulous job of applying that standard and these are very tough cases and as colonel glass said, we're taking cases that perhaps wouldn't be taken in the civilian sector, whether that's good or bad, we can talk about some more. but that's just an indication that we're taking tough cases, that there is risk involved in that, and the ability to take on that risk sometimes results in acquittal. and they're not necessarily a
9:34 am
reflection that anything is wrong with the system. i think the pendulum has swung and is in the process probably of reenergy on the prosecutori prosecutorial judgment whether cases should go to trial. i think for a long time it was swinging everything should go to trial. if it recenters a little and i think it could happen in conjunction with the special victims counsel and giving realistic advice to the victims what the process is going to put them through and what the likelihood of ultimate success would be. i think that pendulum should recenter and it should probably recenter somewhere with a greater number of prosecutions than before it started to swing, but somewhere less than it is now. >> i'm curious now, two of you have said that the military takes cases that civilians wouldn't take and why, why that
9:35 am
is? was there some, especially given the effect on both victims and the accused of such cases, why it is that the services take cases that the civilians wouldn't? was it pressure or emphasis that these cases should be tried or why that is? >> i think commanders, first of all, we trust these two, three and four-star generals to protect our country and to keep our soldiers safe, and i think we can trust them to make decisions on referral. i think the commanders-- this is a commander system and it should be a commander system. but i do believe that there's an incredible amount of pressure on commanders with respect to sexual assault cases and as human beings, their inclination is it to say, let's
9:36 am
send it to trial and let the judge and/or panel members decide. the people that decide those things at big levels, whether that should be the process that we follow or not, you know, i'm perfectly happy to make them-- live with the decisions they make object whether-- on whether that should be the process, but if-- and i think it should be a commander system and i don't have any problems with that process, of the commander saying, look, i don't know what happened here, nobody knows what happened here. so let's send it to trial and let impartial judges and/or panel members make the decisions. but if that's the dynamic we follow, then we have to be willing to live with the results. and the results of going to be
9:37 am
where you have bad facts. it's a bad case. and you're going to get an acquittal. >> well, and just to dove tail on that, i agree with all of that. i agree it should be a commander based system. if it comes out of the commander's hands, i don't think the military justice system is what it is, which is an effective if used properly, an effective tool not just from justice, but good order and discipline. the point i would make is this. there have been myriad high profile distances where somebody has made a tough call and that tough call has come up publicly and has impacted promotion. for the less morally courageous commanders and i'm not saying that's necessarily the world that jeff is talking about, sometimes when you walk into that office and you brief and say, i mean, i've been in a brief with a general officer, two star general where i said, sir, we've got these preferred charges, i don't think we should take them to trial.
9:38 am
she's not credible. my trial counsel does not believe her, i don't know ethically that that's an appropriate case to take to trial. just under the rules of evidence. and that's where we end up. that's why the case does not get referred because we're moving in that conversation, which many of you have had with staff such advocates, many of you have moved to a referral decision and i just say, sir, if you refer this case you need a different sj and different prosecutors because it's not ethical to try. then he says, got it andy, didn't know you felt so strongly, and we'll move out. and another with the judge, that hasn't happened. no way the government had a good faith basis to bring that case to trial and the problem is, the front of the mind, back of the mind, with all due respect to the general officers here, little generals want to be bigger generals, generally they want to get promoted.
9:39 am
it's a promotion-based system, it's hard what are perceived unfair shots against their friends to sit there and say, i'm not going to push this to trial, recognizing that five, six years later, three, four years later, sometimes less, there will be an implication that will change your career. so, we'll talk presumably later about the doj standard. i think one of the things you can do is give insulation to those commanders by instituting a standard that is at least-- and not taking away their discretion, but is at least presumptive, if you don't meet a certain standard, there is a standard, right, there are existing standards, but not what we're talking about. i think it takes a lot of courage for a staff judge advocate and commander, we ask them all the time and more important-- not more important, but equally important decisions and, but
9:40 am
that's why we take them and i took cases, i can think of three or four off the top of my head that the prosecutors literally would say, i'm not touching this. because they know they'd lose and they know their conviction rates come up on reelection. >> if i may give a perspective of the navy. i'll echo what i've heard up here. the navy -- i see it from both angles, both experienced litigators and not experienced litigators. why is that? retention. we can't keep good people in that want to try cases and even we have a military justice track. i spent about 16 or 17 years of my almost 23 years in the navy involved in military justice and back in 1994 when i started in the navy, i was told don't be a litigator, you won't be promoted, but i wanted to try cases. i joined the navy to try cases. that's what i wanted to do.
9:41 am
and so i spent my first two tours trying cases despite the urges r urgings of my seniors and detailers, don't because you won't make captain. i did, but i tried cases 16 of 22 years and saw a lot of cases. we used to have a saying when i was a prosecutor, we try everything. and if we don't, we put it in writing why you don't go forward and we would tell commanders, this is why you don't go forward and let me tell you my -- after interviewing witnesses and credibility and evaluating credibility i made a recommendation. and back then, it was-- may not have been followed in every case, but at least the commander had a letter to rely on that was a prosecutorial merits, now they call them it seems in the navy we would tell them don't go forward and here is why.
9:42 am
they often would choose to go forward anyway. i had a losing record as a prosecutor because back to what i said earlier, we tried everything. so now what i would say is i think-- and echoing what i've heard up here, some of the commanders don't have the ability to make that tough call. should it go forward, should it not, because of some of the potential ramifications to them. yes, little generals want to make big generals, but commanders want to make captain, too, if they're seen as not being tough on discipline and ignoring the desires of the victims, that has ramifications to them. when it comes to senior prosecutors, we used to try a lot more cases than we do today. and we would cut our teeth as baby prosecutors on the unauthorized absence, the awol cases and drug cases and cut our teeth on those small little specials. we don't have any of those, a
9:43 am
lot of that goes the administrative route or nonjudicial punishment route so you don't have the opportunities for them to try cases. certain areas now even in the navy there aren't enough prosecutors. there's not even enough support staff. prosecutors are making copies and they can't keep up with discovery obligations and thus we end up with judges now having to take up discovery issues right before trial because the prosecution can't get the work out to the defense. that impacts military justice and now cases languish in this system. i mentioned that i'm a defense attorney. i have a case that i'm defending where it's been around for a year and it's still not moving anywhere. i mean, a year seems like a really long time for a case to be in investigation and then under consideration by either the prosecutor or the command. a year is a long time, both to
9:44 am
an alleged victim and to the sailor who is facing potential action in the future. it's a grueling job to be a prosecutor, or it can be. it can be awful-- very professionally rewarding. but we have prosecutors as lieutenant commanders who are saying i've had enough, i'm leaving, because they can't be prosecutors, they can't get support for either staff or other prosecutors and they leave, they punch. i he thinks m mentioned i spent nine years on the bench. i was told i could no longer be a judge. i had to go back and be an advocate. after 16 years of military justice i was told we have no more military justice job for you. so i retired in 2017 because i was told there was nothing more for me in military justice. so if we're telling the judges
9:45 am
after so much time that they have to leave and we're telling the prosecutors they can't try cases or even the defense counsel they can't litigate, we lose good people. but the commanders, going back to, they need to make the tough call and often don't. and i understand that they second cases to trial that would not otherwise go to trial. i was one of the prosecutors that took those cases to trial, but we need to put people in command that can make those tough calls and even at the prosecution level or the defense counsel level. if we're putting nonlitigators as commanding officers of litigation shops, then that's a problem because you're having commanding officers who are operators, supervising the prosecutors. and the operators haven't been in the courtroom in a very long time. and they don't know prosecution. they might know how to be a commanding officers they don't know prosecution and they don't know defense. so we may have to look at how
9:46 am
do we select who is in charge of the various offices? thank you. >> hi-- >> experience cases that were declined in civilian system that we went forward with, as generally those were local, state level prosecutors that were declining those prosecutions, and there's just a different set of dynamics that goes into the prosecutorial decision. a staff advocate and commander doesn't have to run for reelection. it doesn't have a conviction rate to protect and it's certainly, your conviction rate is not something that's going to determine whether you're successful as a staff judge advocate or not. and so in that regard, having the greater latitude to take some of the tougher cases to trial is not a bad thing. i think it's a good thing we're taking some of those cases. should we be take everything
9:47 am
we're taking to trial now? i don't think so, some of the harder cases, it's not a knock on us. the fact is the acquittal rate is going to be higher, but i think we can manage that cost. i want to take a contrary position to my colleagues or at least state the contrary position on the specialization. i was a specialist for a while and then i went and specialized in something else and then i went and did the staff judge advocate thing on a couple occasions and found it was helpful. i believe being a staff judge advocate made me a better judge. you're working in the trenches and a better feel of what's going on in the air force. and i also believe that the best way to train the next generation of new prosecutors is in that staff judge advocate office because as a lt. colonel staff judge advocate i was
9:48 am
getting new lieutenant fresh out of law school raring to try cases and the best way to develop them into litigators is to have former litigators in the staff judge advocate's office to train them and to show them how it's done. so, there is a case to be made for specialization, but generalization has its benefits which can't be overlooked. >> ms. cannon and then ms. tocash. >> thank you for your comments. recording the questions of commanders making the ultimate decision and some of the competing interests that they might be troubled by, including ethical issues, we've discussed among ourselves here on the ipad the issue of the preliminary hearing and how that is or has been at time vetting process for cases where there is actual evidence
9:49 am
introduced and where you can see what a case looks like. i'd like your thoughts on many preliminary hearing officers having binding decision making capability when they come to the issue of probable cause, and if that would have an effect on insulating commanders with regard to those decisions? >> i'll speak to this first, i guess. you know, i thought about this and i think it's-- there's pluses and minuses to both sides of that question. and what i came down to was what i thought is kind of a hybrid peripheral process. so and here are the five elements of it that i came up with. first, the general court martial convening north can send the case to a binding 32
9:50 am
for any offense, not limiting it to sexual assault defenses, otherwise, the default is to the current article 32 standard, the second element. at that binding 32, the investigating officer would need to be an active duty or reserve component, military judge or a full-time magistrate judge, more on that in a minute. third element, probable cause is still the standard. i don't see anything wrong with rcm406 standard as it now applies, and that's the same standard that's applied in the civilian criminal justice system. fourth element, the government can come back with new evidence if no probable cause is found. and reenergize the hearing. and then the fifth element, and this might, i don't know if this will be controversial or not. but only a no probable cause finding is binding this prefers
9:51 am
the general court martial convening authorities to-- the and it does not erode the current important protections for an accused. i think that these-- this concept of a full-time magistrate judge to be a senior 04, they would be -- they would, as opposed to our current part-time military magistrates, they would do nothing, but magistrate duties and 32's and supervise the part-time military magistrates and they would help the actual military judges with important rulings on controversial motions or whatever. but i think, i think as i think about it and have thought about it, i think something like that might work and it might provide a sort of an escape valve for the commander who is under a tremendous amount of pressure on some of these sexual assault
9:52 am
and high profile cases, and it's you know, it's tough at the top and like i said before, i think sometimes the decision is just to say, well, on a closed case, we'll just let the panel decide or let the judge decide. >> so for a number of years, jeff and i worked together on the military judge's bench committee. he was my boss. you know why now. i endorsed the nance proposal. one of the issues you're going to hear is at least in the army at post camp or station, there's often only one judge. most places there aren't multiple junction and so are you really going to at fort riley at fort drum. at a 04 billet, that's one of
9:53 am
the pushbacks you're going to get-- i would guess, i don't presume to know what pushback you would get at the services, we don't have the bodies. one of the things i like about the proposal, it's a different box and i think a more favorable box for the system and commanders and more favorable for the soldier or service member, but it also allows you to start to develop judges. our 4 magistrates in this system would be able to get some reps. one of the things you're going to hear over and over again to use a sports analogy is you know, my son is swimming in regionals today. hopefully doing great. he doesn't get to be good unless he gets reps, but we expect trial advocates and military judges to be good without getting repetitions. okay? that 04, whatever we're calling them. chief magistrate, gets some time in the saddle where they get to make decisions. one of my best jobs was as a
9:54 am
part-time military magistrate as a captain at fort bragg. it was, i didn't know at the time, a stepping stone job that helped me to be a judge. i think it provides a benefit. my only concern is that it goes back to the normal army issues, right, staffing and et cetera. i think one of the questions that we're told might be asked of us was how about judges doing preliminary hearings? the problem is when i was at fort drum, i don't have the time and there's one of me. you know, and if you're going to say bring a reservist. reservists have life issues, too, they're not always available in some of the other issues you're concerned about, timing, how things move through the system and again, experience, those are as well. and if you're a judge that goes to 32, you're not trying the case. >> right. >> i'll say in the air force, judges do almost all of the article 32 hearings for sexual assault cases. i did several when i was a
9:55 am
judge. we really handled the logistics issue by doing most of nem by video teleconference so we could do one in a morning many times and spend the afternoon writing it up and still have it done. so at least in the air force's experience we had the manning and we had the ability to do that. i think it did add value and i think if a military judge is making a no probable cause call, then there's no reason that that should not be binding, at least subject to the opportunity to come back and present additional evidence. evidence. >> i agree that with the proposition that an article 32 no probable cause determination should be binding. if the government has an opportunity later on, if new evidence is found, then they can come back and revisit it. what i see though is it a problem with the preliminary
9:56 am
hearing currently, is it's almost a foregone conclusion because the government's obligation is it to walk in and while i agree with the probable cause standard, how they're meeting it generally in the navy is to walk in with an investigation and give it to the preliminary hearing officer and say here you go. no cross examination of witnesses, no testimony, they just drop a paper case on the preliminary hearing officer. so back to some of my earlier statements about alleged victims not testifying, well, many witnesses are not testifying. most witnesses are not testifying because the government's position has been in most cases is, we don't have to bring in testimony because it's accumulative with that report. despite defense counsel asking for witnesses to come, in many cases the witnesses aren't because either they're
9:57 am
civilians and they decline or the government's position is that their testimony is cumulative with the paper. so are you really vetting a case out based on paper? i would submit that maybe not. you're not really getting into the issues of the case. and in the case of the navy i don't know if the army and air force are doing it differently. i have to assume because their investigators are uniformed, we have ncis declining to appear claiming they're civilians, saying they don't have to. so that's causing a lot of discussion amongst preliminary hearing officers and our preliminary hearing officers while sometimes we use the judiciary for the more serious cases it's usually an advocate for another command that hears the case, 03, 04, times 05 hearing the evidence. i was a staff judge advocate and i didn't specialize just in military justice, but staff judge advocate.
9:58 am
some of them don't have experience either and they're making recommendations in maybe their second tour, assume it's a second tour lieutenant, they didn't try many cases in their first tour and now they're a staff judge advocate weighing evidence at a preliminary hearing officer, the evidence which consists of a report and no testimony. not even by the agency who investigated. and i think that's a hollow process. you're not really getting to the evidence and what exists other than what is in an investigation, which may not be thorough, it seems the agents have a checklist that they use for investigating sexual assault cases so they're not delving into the issues that might exist, that are credibility issues, that would be important to know at the preliminary hearing phase. >> colonel moore made a comment about in the morning he might hear a 32 as the preliminary hearing officer and in the afternoon write it up.
9:59 am
that tells me that sound like a paper case, right? we drop a report in the afternoon and all he has to do is review and write it up. i would think that that might not have been a thorough 32, all due respect to colonel moore, but did the government really present the evidence other than what was written on paper and while i understand that's what the rules allow for, the rules also allow for the defense to have that opportunity to present witness testimony and it seems they're not getting that opportunity. thank you. >> miss tocash and then miss long. >> thank you, i hope you can hear me okay. >> megan, you're going to have to speak louder. >> okay. can you hear me okay? >> that's better. >> okay. from where you sat as judges and where you sit today, what impact, if any, does the lack
10:00 am
much a required prosecution standard attend to the u.s. justice manual have and on acquittal rates and was it standard that you must have admissible evidence to obtain and sustain a conviction be helpful? ... i think that higher standard would actually remedy the observations that colonel payton o'brien has about the pro forma nature of the article 32 investigation. the reason there's not a lot being presented at the article 32 investigation or is there's not a lot that's needed to beat
10:01 am
the probable cause standard. so to me if we are saying we need to bring more information out of these investigations what we're really saying is we need a higher standard. i think that's the question is, do you want someone to look at the case just based on what is there, minimally necessary to establish probable cause? if so, status quo, continue as we are. if you think you need more information, if you think you need to evaluate witness credibility, that doesn't go into probable cause really. in that case you need to have a higher standard and maybe department of justice standard does make sense. >> so when we talk about discretion, again, i hate to beat this -- it's relevant. who's making that discretionary call? you can oppose a higher standard but if that discretion to call is an experienced prosecutor making a recommendation to somebody who has experience in the process, that's a different
10:02 am
discretionary call than somebody who has two or three cases making a recommendation. it does matter the prosecution standards are different. dramatically different. i would tell you come i sat in cases and i believe this to be true, where i would look and i would think, how are we hearing a motion to dismiss a sexual assault case at a very, very what's called a 17 motion. how are we even hearing this? why are we here? that's not a credibility determination. that's just the baselevel fax have they met this burden. the government come have they met this burden? if you're there that tells me there's something really wrong with your case, which happens. sometimes witnesses don't show up or changes their the testimr you didn't fully consider whether this case should see the inside of the courtroom. doesn't happen a lot? it does not. i don't want to overstate that but to have it happen once to me
10:03 am
is problematic in the system because that's an ethical call a lawyer ought to be making. i'll tell you i sat as a judge a number of times ruling on motions where i would have both sides present evidence, fax, whatever, for example, one time i i had a motion where the relevant issue was when did the article 32 change? that's a fact. that's a fact, experienced defense accounts, experienced prosecutors did not give me that fact. if done intentionally that is an ethical violation. i don't think it was done intentionally so there was no ethical follow-up but it's an ascertainable fact. do you know how i know? i googled. i took judicial notice of it but the reality is that at the end of the day, yes, i think it would make a difference. i think would make a huge difference in having a standard
10:04 am
that would insulate people in the system but at some point in time it doesn't fix all of the issues that are out there. i want to make -- is bps in the army are amazing talented people. i'm not disgorging the program i'm just saying it's not enough. ultimately if they go on to be older, their medical to be able to inform a system then form commanders that make that system work. >> and i would just sort of agree with what's been said so far about the standard and just sort of refer back to what i said earlier about what is our purpose. if our purpose is to get more convictions on sexual assault cases than having a higher standard will reduce the number of that cases that judges here, panels here and reduce the number of acquittals and sexual assault cases, if the object is
10:05 am
to give a sort of pull back on the myths of uncertainty that the public i have about the justice system, by having all cases go to trial and live with the results, then i'm not sure i higher standard is going to achieve that goal. >> thank you for being here. before i ask my question i do want to be the dissenting voice, that i don't think we can actually say that your acquittal rate is any better or worse than the civilian world because we don't have that comprehensive data. and i think everyone always thinks you are taking cases that the other doesn't take and i think that's true in a lot of you have certainly sat in place where you know your civilian has taken something you have.
10:06 am
that's helpful but i did just want come for me i wanted to put that out there so there some comfort that it don't think you're different than any other standard right now. my question is on the article 32, and since a lot of you also have civilian experience you know preliminary in the civilian world are definitely more than what you describe described tht article 32 is by not necessarily a full and open discovery peace for defense, witnesses are called although they can be. can you envision a a system, a process in the article 32 where it is different than it is now, it's not a paper but it also isn't a full hearing basically where you are determine issues that are not necessarily relevant as a probable cause standard and would maybe be determined if it was admissible evidence are other things to go forward?
10:07 am
can you envision a hearing that would be protective of victims but also fair to accuse and fair to the process than exist now? from what i'm hearing, what you're saying about the paper, that doesn't seem to be satisfactory based on your experience. >> i'll start. you seem to be looking at me. [inaudible] >> while certainly as a defense counsel it would be great to have opportunity to cross examine a victim. i'm talking necessary about that for for a fair hearing or even a thorough hearing. because victims declined as is the right to be present at the 32, and i seen some that do come in, willing to do it. but then when you use a paper case, when it is the agency interpretation of what was said
10:08 am
summarized in a report, which may or may not have the sort of -- i think there's a change in the volume. i lost my train of thought for a moment. when the agent puts on just the report and with the prosecutor puts on just the reports which may or may not have the testimony or a statement, verbal, audio or video, it would just get a summary. which is not helpful in the process here and when you have an agent declined to come in because they view themselves as being protected under the rule as a quote a civilian and i would disagree. i believe if that had come to s a judge that i heard a motion for a new 32 because the agent didn't come in claiming they were a civilian, i believe that would've been something i sent
10:09 am
back for a new 32 because i don't believe that our civilian law enforcement to work for the department of navy can claim they are civilian, don't have to testify. but if that's the only person that comes in, and i've been part of civilian processes i had a preliminary hearing, the only person who came in was the police officer. at least there was some testimony that one understand is not a full discovery of and for the defense, it's also an opportunity to see what is there and present some of perhaps defense evidence that might go to that determination of probable cause. as a defense attorney you don't have that ability, then -- that needs to be present is a little bit of evidence for probable cause which as a know it's a fairly low standard. do i think it needs to be back the old days of when it was an all day 32 and we paraded all these witnesses in? no. i think they could could be something in between, but to
10:10 am
claim that any what does who testifies, and this seems to be at least from my perspective now, what's happening is the government claims anybody who testifies if their neighbors in the report and they have given a statement than the testimony would be cumulative. i would disagree that's always the case. as a defense attorney when i talk to witnesses and interview people there is probably something i find that i would like to present. i can't do that if they are not there because the government has said they are cumulative and oftentimes malingering officer will agree i have a report, i don't need the person. i think something in between. because you need to explore some of the issues and it's not a full discovery tool like it used to be, but the defense still does have an opportunity to put on witnesses. it's in the rule and it's not happening. i think if they had the opportunity it would be a more
10:11 am
thorough investigation, at least for that credibility or that determination by the commander who has to make that call when they receive a report, if double cause standard was met -- probable cost and was met. met but don't go forward and here's why. al gore forward but know you're going to lose. and don't get me wrong. i don't believe the objective should be let's just get more convictions. the objection -- objective should be present the case, , if it's going to trial, let the process take place and the objective of the 32 shouldn't be too perfect the government case or poke enough also doesn't get probable cause so that at least there's an evaluation of the evidence. thank you. >> i think again the standard will drive behavior. if the standard is probable
10:12 am
cause, i don't think any prosecutor is going to show anymore of his cards that has to do make that standard, and so if you think that more needs to be done, more needs to come out, then the answer is to raise the standard. or to change the rules of admissibility of the article 32 investigation perhaps. any change change to the rules prosecutors will adapt and over, come so certainly i think any modification is easily enough and permitted. i think we have seen adaptations to changes over the last five years that everybody has held with a plum. i think it is certainly doable. >> colonel moore -- [inaudible] just to follow up though, but the civilian standard a preliminary hearing is probable cause. there's not this issue. would it have to be a a changen standard at the hearing for there to be a change of behavior, or do you think the
10:13 am
air force of the people that you are saying you had seen in the courtroom could change the behavior. >> will probably change the underlying rules as well. and so for instance, captain payton-o'brien mentioned the cuteness standard. so maybe you tighten that up -- cumulative standard. a broader definition of what is a tighter definition of what is cumulative or you eliminated altogether. or you have military judges who feel a little bit more comfortable standing up to the prosecutor and say i want to hear from this witness. >> i think more robust article 32 hearing would be useful and providing information so that person who makes the decision about referral has the most information available to make an informed decision.
10:14 am
i don't know, i'm a simple guy here i don't see how that's a negative thing. >> so i think we think there's a public benefit, and i understand these hearings would be closed at certain a critical portion but there's a public benefit to this being able to be a tv today. i joked that one of the good reasons that we don't have tvs in the military courtroom is what the gentleman did before i would've found him in contempt, okay? i know he's doing his job, but my point is, my point is that we believe that this as a public benefit to being out there. what public benefit is there to a paper case, and what does it do to the presumption in society that this really isn't a justice system? so that's the first point. the second point and this is i know these things in america, he may already have the statistic, but if you don't, and then all the various departments will
10:15 am
love me, this table over here will hate me, but i would look into how often in sexual assault cases that 32 is waived by the defense. because they don't think it's fair. because they don't think there's any benefit and because they don't think anything good can come of it. so i would check that if i were you. then the other piece. if a judge doesn't have comfort stand up to a prosecutor, whatever the rule is, and making sure something is fair, let me say that a little more positively. the judges. this table would have no trouble saying nope, we're going to hear this case, or nope, i'm going to allow some latitude. there's no doubt at a don't know the specifics of some very, very misuses of the article 32 system in the past but there's no doubt there have been some misuses and abuses in the former article 32 that resulted in this change. i think there is a middle ground, and i think to the
10:16 am
degree you can get somebody who knows what they're doing who has been trained with her doing whether they are a major or lieutenant colonel or colonel city to saint nope, i'm going to allow this, or nope, you need more, i think it makes a difference. it does matter. >> mr. kramer. >> i'm sorry to switch topics for second. i wonder what you think of the ability of defense counsel to obtain experts in the procedure they have to go through to do that and whether that should be changed? >> sir, i have preached on this for my entire time in the military. i think it should be changed. i think it's difficult to impossible for the defense counsel to get experts. i think having it proved by the prosecutor is the wrong answer. i think the defense bar should
10:17 am
be -- dds in the army parliament should be funded and they should have at the tedious headquarters level a warrant officer who's in charge of dispensing money for expert witnesses and the chief of tds is the adult in the room who make sure that there are no abuses for frivolous -- and, of course, the judge is going to do that also. the judge ultimately it's to say whether an expert gets to testify or not. i think a better dynamic, a better system for experts for a defense bar. >> i agree with all that. i would just say this and i think this is changed, i'm not conversant with what's going on in the army, but sometimes she did expert to establish you need an expert. someone has to come in a testify and say that this is what i will provide to the court to persuade that judge that this person should be allowed to testify.
10:18 am
i think there's money, i know again years back and trial defense service that was a big conversation. hey, how do we do this? we can't get there without -- it's the rare expert with a very dedicated expert that's willing to testify to establish that they are needed. and so -- >> for free. >> yes because if they don't give retain their give that back. absolutely i want to echo what jeff said. there needs to be a pot of money the defense can go to, , at a think now with investigators also so you can establish that kind of baseline case for the additional assistance. >> i think the current system has actually worked fairly well in the air force. i generally more often than not with the experts that it did not have to compel so they were getting appointed and funded. that's not to say the proposal is an superior.
10:19 am
i think the fact i think it works in the air force and it doesn't work in another service indicates that the process is not as good as it should be. it shouldn't depend on one services implementation of it. and to that extent, having a a trial defense services in charge of it does make sense. you are still as a judge going to have those circumstances with individual defense counsel doesn't agree with his bosses decision. i think you'll see all bought fewer of those then you do disagreeing with the prosecutor as he advised advise the conveg authority on granting that expert. >> i have actually tried a case with colonel moore as a defense counsel, and i will say that i was surprised because i came from the navy, that the air force did it in my visa worker there were multiple experts granted by the convening authority but in the other
10:20 am
services we struggle as defense counsel to get experts just for purposes of consultation. do we need an expert? authorities often, more often than not deny that and i think that for defense counsel, that's a difficult road for them when they are trying to evaluate their case. they think there's something there. they are trying to find somebody who might talk to them for free, and as defense counsel we all have sort of that group of experts we can reach out to just about that conversation, do you think there's something there? they won't charges. in order to do the valuation they need to be appointed and convening authorities resist. i do a lot of appellate work now, and i read directors of trial. i'm often shocked but often shocked at how many pages of transcript i'm reading with the government fighting over
10:21 am
experts. experts. hundreds and hundreds of pages on motions. the court not granting experts, or ultimately granting the expert after a day of testimony and fighting back and forth. i think the system needs to be changed to allow the defense to have that opportunity to seek a consultation because we know that government has it. they have all the tools at their disposal that they can call. although i would say maybe even the navy medical committee experts don't want to be installed and that presents a trouble for the government as well. i think the current system does need to be improved upon. >> what is that they don't want to be involved? >> don't think anybody relishes the idea of having to testify in court, the matter what side you are on. [inaudible] >> you know spanish take away from what they're doing on their day-to-day. >> but our military medical system is overstretched just
10:22 am
with patient care. see what's happening with dependence and retirees. they are not necessarily seeking treatment at the medical facilities anymore because there's not enough doctors, not enough time. so now you have a doctor who sees patients and has to be an expert, and they don't want to get involved. there are some who love it, they want to, but -- [inaudible] >> i would say oftentimes you'll find the medical because they are stressed under the patient care. we can look to the civilian population. there are plenty of civilians who do this for a living and i would say i think that it has a pretty good pool of further utilized and it is probably shared with the other services as well. it is difficult to find the active active-duty to be involved. >> great segue. >> so this is an issue near into to my heart. i'm interested in hearing from all of you because the services
10:23 am
do use experts at differently, whether or not you believe experts are being used effectively at trial. >> so in the navy i would say that in the sexual assault cases there would be experts involved, and every case that i have tried to come with a i was a judge, trial, defense counsel. there was some sort of expert involved. do i believe they were effective? i think that sometimes is expert specific but we're talking dna, forensics. there's this phase that often is that if the bow, cases are so much more complicated today. i would tend to disagree that the cases are more complicated than they were 20 years ago. perhaps except computer, cell
10:24 am
phones, the snapchat were things disappear. maybe that site is a little more complicated because of just the forensics they goes into that and if you trial counsel who are young who don't understand the computer forensics and the phones. that can be problematic, and i see it in transcript i read and i saw it when i was a judge. i won't tell you my age but i can tell you that my 16 and 18 year old kids are way more proficient on the iphone than i am. i had it to them, i'm not sure what to do. if i'm a a judge and i have tht difficulty, we can imagine maybe some of the council do as well. but do i think they're being used effectively? for the most part yes, but is it a fair playing field? i would say no. i think that with the defense, and we go back to your question of having to ask the experts, sort of baking, please given it as an expert we needed for this.
10:25 am
oftentimes, the court might say you should be experienced in this, you've done enough of these cases. i know as a defense counsel when i sit experts i often to get a a response back from the government that says you were a judge advocate for 24 23 years. you are a judge or nine. you don't need an expert. you are fully versed in this. but i can't testify so they tend to miss that part. i need a consultant to help me the might turn into an expert, but they are denying because of the experience level of just the council. admittedly the case law indicates i should be, should educate myself, but that only goes so far and sometimes oftentimes we need an expert. >> i would say most of what a scene from experts has been that they been very helpful and very well employed. what i saw an air force practice
10:26 am
was the same handful of experts over and over again working equal number of cases on the prosecution and on the defense side which gave them great credibility. i can recall a few cases where the experts were advocates in disguise, and that was very easily revealed throughout the course of the court-martial. they were not effectively employed and they were not persuasive in having a really negative impact on the overall outcome of that case. but by and large, many of the issues that we are dealing with an particularly in sexual assault cases, i have been much more in line by hearing from experts. i'll call is almost always involved, and so the education i've gotten on issues like blackouts -- alcohol is almost always involved. the effects of alcohol on memory, those are invaluable to these court members into a judge sitting as a court-martial in
10:27 am
evaluating all of this evidence that you have before you. so my experience has been it's been very effective, very helpful. and the experts that i see on a regular basis have been very professional, neutral, tell it as it is, and have been very helpful. >> i agree what was said. when an expert gets to trial, my experience has been most of the time, the vast majority of the time counsel, both defense counsel and trial counsel do a good job of getting the pertinent information out of that expert in in a good way, y good presentation. i think they struggle, and he think that's because the expert helps them design their direct or cross-examination.
10:28 am
i think where the struggle is in the decision and in figuring out whether or not and how they need an expert and how to get the expert, and that's a a productf lack of experience. but i want to just add to that, that i think hq e program, at least, i don't know if the air force on the other services, but the hq e program particularly in the army, they do a great job of helping young counsel understand expert process and helping them make the decision about whether an expert would help the case or not. i think that's the question young counsel took with the most. do i really need an expert or am i just hypersensitive about ineffective assistance of counsel and ask you for an expert when i really don't need one. >> i just want to echo what other panel members have said. i think discernment matters. so discernment of not just do i
10:29 am
need an expert but what are the consequences to the timeline of my case, if i call an expert often you will get a defense request for an opposite expert. and also what are the consequences in terms of evidence that is now admissible or approaches that are now admissible? you don't always see that. just to echo again the testameny i've heard in my courtrooms from experts is almost uniformly been when given professionally done, usually professionally cross-examined, sometimes i wondered, why did he or she testify? especially when i'm a fact finder. why did i have to do this? what it is at two entrance of the development of the case? ipad instances in sexual assault cases were experts have done almost dispositive because, you
10:30 am
know, it just strikes be always with young counsel, judges like to learn. those of you have been judges, sitting on the bench everyday can get kind of dry. so learning and developing and understanding of how this works, good expert is a good educator, and so that has been interesting i want to give your contrast. i'm not sure exactly what it means and we can't find all cases like this, but i had the honor to sit on a capital murder case. and you talk about experts, because death is different, it's pretty much like a candy store of experts. you get all you want. it is at least striking to me to see the contrast of all you want versus we can't figure out getting this expert to trial to give both sides and adequate opportunity. it rarely in my experience, and the others can correctly, it
10:31 am
rarely in my experience looks fair for dr. jones to come in o testify for the government, if any of your dr. jones, i apologize for dr. jones to testify for the government and to be nothing on the other side. i must think it can't happen. the standard allows that sometimes, but in a capital world, for good reason, there are millions of dollars spent on expert witnesses. it seems to me it could be a a greater balance and how we approach that. >> ms. garvin and then ms. long. >> thank you all for being here. i have an intentionally broad question so that you all can take it where you want and it's a compound question but you all can't object to it. just want you to share your experiences with 412 and 513 and particularly as you been up all the news, what have you seen, hopefully post 2015 when they were amended? but if not that's okay, too.
10:32 am
with the constitutionally required exception which i find odd as that explicitly crafted exception because of course it would be there even if it wasn't explicitly in the language. but what are your experiences? how are you seeing that impact trial courts are you seeing it impact trial and what are you sync with the role of the svp and we want to go with 412 at 513? would love to hear the judicial perspective. >> i'll take the top legal question first. my experience kind of runs the gamut from the old 412, the newer 412 to the new 412 and 513 doesn't exist, simple privacy issues and then litigating and expanding how we look at the
10:33 am
513. i would say generally that victims counsel in the army, in my experience, are really good on 412, and that don't know if they been collaborative with the government but a really good at saint me too. i don't get a lot of new nuanced arguments or i didn't get a lot of 412 of 412 or 513 for victim's counsel where i said that changes the landscape. in that context one of my concerns as a judge, as the 513 system evolved was i had a couple of cases under the old 513 or maybe under a misunderstanding of 513 where reticle records came in, we disclose under a protected order and were huge and a determination of judicial guilt but may also been huge in a determination as to whether this thing ever happened.
10:34 am
ipad instances, not recently obviously, but i instances where there were personality disorders disclose in the release of medical records that went directly to the claim. frankly, in one of the medical records said, well, i will give the specifics, but said, gave facts that undermined the original claim of sexual assault, and had a diagnosis of the personality disorder that was among the criteria, have difficulty telling the truth which that was huge. so having litigated under different paradigm and released it, and the defense had a heyday with it. so my concern i guess is as a human and as a judge was what don't i know? what is out there that i haven't
10:35 am
seen that make a year or two years, maybe never, implicate whether not this was a just trial, whether this was a just process are whether this was a just verdict. that's my observations of the system. >> and just to sort of dovetail on that. i think my experiences were similar because our time in the judiciary sort of span the same timeframe. i lived with an experienced thyself and struggled with the implementation of the rules as they changed and so it come understanding of what was required and how logistically to go about it. unlike my current job as a military judge i did have a law clerk. it was me and me alone. so when i would get a stack of medical records this high to go
10:36 am
through and try to see if there was something in there that needed to be released, man, i didn't have the time to do it. but really didn't have the medical expertise to be able to do it. and i was always afraid i am going to miss something that should be released and not release it because i just don't know what i'm looking for, because i don't understand what i am seeing. that was always my fear. maybe that was a good thing because it made me more vigilant in reviewing those things but it really was a burden as a military judge to try to have to go through that in the midst of a hotly contested trial when it had a lot of other things to do. i think that as counsel became more experienced with it, i saw the requests in those areas, sort of shrink, not just in
10:37 am
terms of numbers but in terms of the scope. they learned to narrow their scope and figure what they were looking for which made life a lot easier. and i think made the chance of making mistake reduce, from my perspective as military judge to reduce the chance of me making a mistake on that front. wes? >> colonel nance come 513 made the job of reviewing patient records immensely more difficult. sometimes you have to do the difficult, so the other side of that is i think we do a much better job of protecting those confidential records than we did before. i think the default position before 513 was release everything subject to protective order and then we'll just fight weather trial or not. without much consideration of
10:38 am
the fact that is of victimization in and of itself of somebody, because so many of those records turn out to be irrelevant. that's one area where the plcs have been a value. having somebody who is on that victim side could talk to the issue with them and very often come back and waive privilege as to huge amounts of the records. turns out in many cases that is only this one little part of the record that she would have any issue with anybody seen. and if they could help you to know that issue, they could help you to get to a better quality decision. echoed many times the feeling of inadequacy to be doing this just from in terms of knowing what you're looking at and making the right call. you have to have your own dsm out looking at things like that. [inaudible] >> probably so.
10:39 am
when we talked about experts before, , having expert availabe to the court maybe to talk to on a confidential basis on something like that would have been helpful and helpful just to bring the workload. >> that's a good thought. so i tried cases as a prosecutor under old 412, tried cases under new 412 and newer 412 and, of course, even newer by 13. we talked early on about the training we had had as judges, and the annual sexual assault focused training for judges was invaluable to navigate what are we doing now and how are we doing it? who has suggestions on what you do x perhaps i got it wrong on more than one occasion. i can think of at least one case that the court said i i did it wrong under constitutionally required, but it could be a
10:40 am
struggle. if you don't have a court expert and i just a court expert in one case because it was a mental issue, not even sexual assault, and mental health issue for and defended. using a court expert would be invaluable when you are going to be evaluating mental health records to determine if anything needs to be released. the comment about the requests are shrinking, i would agree that it seems that the number of requests and motioned that i was receiving towards the end of my time on the bench seemed to drop or at least to be frank and so the motions were the same every case. i needed mental health records because she saw therapist. that's not helpful. seeing a therapist was not necessarily what you needed. you needed to know if she had a mental health disorder. the problem for the court and
10:41 am
for counsel is yes, they might know somebody sought mental health treatment, but they don't know why. and so what are we missing? what do we know? sometimes counsel struggle with that because the dlc doing a great job of protecting the client but the prosecution may not know what's out there? the defense may not know. they just know there's something and at least in one particular case i can recall not for me as a judge, the mental health issue came up in sentencing. and so then now there's this stop the case look into what that is. that's too late in the game for the issue to be now vetted. it's very late in the game because it comes up in a victim's statement during sentencing. and in the old days we would look at 513 records, and i think i did this, i'm certain others did as well, you would look for
10:42 am
prior inconsistent statements. that's that what we do now. we look for the mental health disorders but i can think back when we were releasing records if there were prior statements in there. now trying to find the mental health disorder that might be there and counsel for both sides are still unaware of what they are presents a challenge for the court because we are being asked to rule on 513 motions without all of the information. defense counsel motion, , we thk there's something there. do you have anything more than that? no. okay, so our hands are tied by the law. >> ms. long. >> thank you again. i want to go back to an issue that came up i think both colonel glass and colonel nance raised about command decision, and cases going forward that may
10:43 am
not, that the command or someone may not actually believe there is a credible claim or that the person did it. which is something when you said is concerning. and i'm curious, sort of like the article 32, if there's some solution you could think of where that command decision to go forward could be subject to attorneys, if there is an ethical issue. and i understand that from the civilian perspective and from the military justice perspective. sometimes we differ in terms of the ethical obligations of the prosecutors going forward. sometimes we put arguments about whether the rules are professional or not you and me but in training whether professional responsibility apply but obviously in the civilian world, and i was in any world where we have a criminal case, you'd ever want to just be throwing it up to someone if you
10:44 am
don't believe a crime has happen. is there a solution that checks the decision-making to ensure that cases, that ethically should not be that i'm not talking difficult cases that are complex where we don't know what a a jury would you go on talking about cases that didn't have admissible evidence or do not have credible testimony and credible meaning there is no testimony we don't believe the complainant, and/or we don't have admissible evidence and someone is throwing that up because they're afraid of not getting promoted. is there a check on that which you could recommend? >> well, i haven't thought of one, but i really believe in our commanders system. and i believe we are different,
10:45 am
military justice is different. i believe the commander involved in the system is hugely important. will there be times when commanders make an unethical decision? i suppose so but i think that happens in the civilian justice system as well. i've never worked in it, but i paid attention to it and i think it happens there as well. my experience has been that, and again we are not talk about the close call flip a coin cases. we are about the unethical decision. i have not seen that, and i think, i think, and i have advised commanders about referral. i didn't spend my entire time as a military judge although i would've liked to.
10:46 am
the commanders take the decision seriously. my experience has been that they take their duty to the system seriously? and though they may feel pressure at times to let -- and i hope i didn't infer from earlier comments that the commanders were sending cases that ethically they should not have, but do they feel pressure from without and from the civilians that oversee our military justice system? do they feel pressure to send a case that may be they are not sure about? i think they do. but i don't -- i have not had the experience where they know a
10:47 am
case is not a true case, not a case that has a a chance in the world of success at trial, and they refer the case to trial knowing that. i haven't had an experience with that. >> so i think any honest response to this question involves this disclaimer. when you're a judge, more than any other time in this process, you don't know what you don't know. you don't know what's going on behind the scenes, you don't know -- you should know, if the witness doesn't show but you don't know what a witness is supposed to say. so with that caveat, i think there are what i would call bulwarks against that in the system. the question is whether they work and whether those bulwarks are supported sufficiently. so i will just give you -- i i certainly have sat in the courtroom as a judge thinking how did this get your? i don't even see white we are here.
10:48 am
not he said/she said credibility call. i would tell you extremely infrequently and i don't know what happened in the sj meeting with the commander. but i do know that when i have said in classes, so there's a process or used to be a process in the army where you have things that are called bridge the gap, which is after trial tell people, supposed to be technically what they did right or wrong, that waxes and wanes in the service but there's also your supposed to something called gateway sessions where you train prosecutors and defense attorneys and talk about legal stuff. i have sat in those systems, excuse me, and those classes, and said why are you applying a different standard, if you are, what are you applying a different ethical standard to sexual assault cases then you would from just a general crimes case? more emotional couple get a case, i that but it's the same
10:49 am
ethical standard. i've also sat in a room where i thought we were narrowly close to referring just to see what happens. that expression, that expression in the system is problematic. that's of how the system works. we don't just throw things up against the wall because there's a service members like on the line, there's alleged victim quest to come in a pay this price which is always a significant difficult price for that person. you could do a couple things to try to make them better. you can have best be with expensive when they stand up and say hey, this doesn't work, and i flickery if it's a command of a system it ought to be a commander base system. you can train. the army is good at training and good at standards. when he did not lose what that standard is. i find with the doj standard. civilian and u-class is fine with it but if that's the standard when you to train to the standard and we need to tell people it's okay to walk when
10:50 am
you don't meet that standard. some of this is just quiver is advising the commander whether it's stp or sj, then having the moral authority to say in writing, i never had a problem with anybody. it's my lack of intellect and i don't know but i always want to say sir, you shouldn't do this and here's why. and then some of this with all due respect falls to the politicians. every time a decision doesn't of the way we want it to go, if there's a lynching or a cross break whatever your chosen metaphor is, because commander made the tough call, we have to take step back and understand that's what we pay commanders to do. that's ultimately what we invested with that authority. and so i think there are protections involved i think we need to train them work it shocks me sometimes, not anymore but it just a shocking when outset with young captains and six what is your ethical standard? real quick war story.
10:51 am
we don't believe her in it he said/she said. we don't think she's telling the truth. she has affirmatively lied to us in the past. how would meet the ethical standard? how houck we take that to a courtroom if that's all there is? fso forensics, nothing else. to me, i don't know if it's easy, it's never easy but it is straightforward. that is not a case that goes to trial. >> i would say first of all, as judge advocate general -- [inaudible] i enlarge actually universally were some of the most impressive morally courageous people that i have found. so to meet the implication that they would fail to make a tough decision because of career applications, i have not seen any evidence to support that. that being said, i believe at least what i was judge advocate,
10:52 am
if this staff judge advocates of the so probable cause, did not have the authority to refer over that recommendation. so there was at least that check in the system before going in. another thing that always experienced, and i advice commanders not to go vote on charges and we decided not to go forward on charges, and one of the things we always did was coordinate that decision with the victim's counsel and with the victim, much like you don't see people suing their doctor for malpractice if the doctor has good bedside manner. there's a lot to be said for having that relationship with the victim. even if it's going to be a negative decision that you thoroughly explain why you were doing that and what all of the thought process was.
10:53 am
i've never had that come back on a commander for doing that. that's the only comment i had, thank you. >> as a prosecutor i can recall on during those memos, saying i don't believe this occurred. that's my personal belief. does that happen? i can't speak to that. i can just it with the evidence is telling me. i also though belief in the current system that because we do have some inexperienced or not overly experienced prosecutors handling sexual assault cases, their personal beliefs that there's nothing you are personally believe that i don't find the victim credible causes concern for whether or
10:54 am
not they really can't evaluate a case, and does that make them then if they make that expression i don't believe her, don't go forward, then the government chooses to go forward, does that put that government counsel and ethical quandary? i would suggest no. there are certain cases, i concur with colonel glass, there are cases a came across the bench when i was on the bench that you have to think how did this get through a 32? did anybody ever talk to this person this victim? didn't know what he or she was going to say when they came in here? how did it get here? i was the fact finder on a case that ended up at trial where i convicted, and then it came out in the press lived the convening authority have concerns about the case from the get-go. the question is, well then, convening authority, if you concerns why was it at court-martial? why did you feel it necessary to throw it up the wall?
10:55 am
if you believe, convening authority, it should have been there, why did you send it? because from my perspective as a court there was sufficient evidence, what was at the cost you concern? sometimes it's that evidence that doesn't come into court that we don't see. we don't know everything that's going on behind the screen. but convening authorities need to have that, that ability to say i'm not going to take it, don't just throw it up there and let us try to figure it out or let members try to figure it out. what's the solution for that. i'm not sure. i just know that commanders need to be able to make the hard call. that's why we pay them the big bucks to do so. they are to make the tough calls. sometimes they have a prosecutor that may not be giving them the correct advice or good advice because of a lack of experience. thank you.
10:56 am
>> thank you very much. i wonder if we could spend a little bit louder, please. >> can you hear me now? hopefully you can hear me now. i would like to take advantage of your experience to shift to another part of the process, sentencing. we heard information not from judges. we heard that active-duty military judges were reluctant to speak to our committee because they felt that they should not be, because of decisions, explaining the reasoning for a sentence that they impose at a court-martial, that they should just simply announce the sentence and not explain the reason. when you look at the actual sentencing and were trying to see whether it was confined or
10:57 am
some other sentence that was imposed when the military judge was imposing the sentence, the announcement of a sentence and the reason for it is an enormous portion of the sentencing process in the federal system. because we have sentencing guidelines that likely would not smartly be transferable to the military that are very complicated and are an enormous portion of the sensing process the federal court, but one thing that they do is they require an explanation by the court as of the court evaluated a number of factors to include the seriousness of the offense and prior history and characteristics of the defendant innocence which is necessary to serve the purpose of sentencing, and there are a lot of other factors that go into that as well. i have met with active-duty
10:58 am
military judges and was requested to talk about how sentencing occurs in federal court. there's much of what happens in federal court that would not be in my judgment good to be adopted by the military. but one thing that does strike me as being important in the sensing process where i live is that if you experienced a concern or a reluctance to comment on why it was that you were imposing a sentence, just because you are afraid the appellate court -- not afraid, but your gotten guidance saying you were doing something wrong. and secondly, do you have any thought now that you are retired about whether or not the convening authority should have the ability to change a sentence when that sentence has been found by a court-martial and
10:59 am
imposed by a military judge or by members? >> judge, this is andrew class. first of all with regard going to the process, i think and of sure you appreciate a look of it is that in terms of active-duty judges speaking to sentencing or speaking in this form is a a concern that something you say may or may not be misconstrued as taking a position that's adverse to the prosecution or defense. with regard to the appellate issue i can tell you back as a baby judge, there were so many times, and this isn't directly responded question but there are so many times widely felt like in nonsex cases i felt like the accused road just needed a good butt chewing and you'd have
11:00 am
somebody in the judicial road tell them they're on the road to provision and that would have as much impact come maybe that plus a jail or -- and i will tell you in all candor identity for in case of which i didn't get jail time or a sense that was necessarily going to qualify for an appellate review, or an automatic appellate review. .. not stepping in it when you say, and we only have certain things to do with sentencing, not being contrary to the things you are allowed to do.
11:01 am
your junior lieutenant colonel just walked into the job, you haven't done justice in five years. you have been trained and been through all these things and a different appellate system, there is mandatory appeal, no accused has to pay for transcript to be prepared. now accused on the first level of appeal has to be for their attorney, awesome protection for servicemembers and in that system, that junior lieutenant colonel to get up and say what happened. that is one beast. with regard to the authority changing the sentence i believe there are to be the ability to change a sentence. simply put as a defense counsel when i was young, i was able to mitigate sentences, and
11:02 am
nonfelony is, was relatively mitigated case and a difference in servicemembers lives. they are too harsh and need to be mitigated. the ability to do that would be concerning. forwardly, bob gets two years and at fort campbell, same set of facts, you get 50. that has always been a check on the system and i want to echo what i said before and was other panel members said. we trust these folks with a heck of a lot of responsibility. sometimes they, quote, get it
11:03 am
wrong by perception but most of the time we trust them to get it right and do get it right. that is my perception. >> i am afraid of a system that judges explain the reason for their sentence in our current military justice system where we don't have sentencing reports and don't have sentencing guidelines and that sort of thing. my fear would be as and he mentioned, let's put it this way. we would certainly increase the work of the appellate. whether or not a judge said something he or she shouldn't have said, we will have more
11:04 am
appeals if we do something like that. is that a reason not to do it. that tells me the chances of a judge saying something that is either wrong or could be construed as wrong, and if we did something like that, it would need to be very narrowly focused. right now i do bond hearings in the courts that i practice in now. when i deny a bond or grant a bond i say i find the respondent would be a danger to the community, for this conviction in this arrest and the respondent would be a
11:05 am
flight risk because i leave it at that. something along those lines would be implemented to prevent judges from saying things they should perhaps they in a cleaning their sentence. and on the convening authority to change the sentence, i believe in the commander's system. i trust our commanders. they need to have that option, the escape valve option to correct what i will call the very rare mistakes that occur in cases before we get to them. but the rarity doesn't diminish the significance of those mistakes and having the convening authority as the ability to say this was wrong. this is indispensable.
11:06 am
>> articulating the basis for a sentence there has to be some standard against which the articulation would take place. if the standard is your giving a sentence somewhere between no punishment and 30 years confinement and dishonorable discharge, there is not any reviewable way you are going to be able to articulate how you arrived at that in the absence of some standard that is already pre-promulgated and out there. as judges, if you give us a standard, articulate why we are complying with the standard and dealing with challenges for cause and the standard is for granting the challenge, we, to collate the standard and say why is it within the standard? if the standard is just from no
11:07 am
punishment to dishonorable discharge in 30 years there is not a framework force to make those comments. as much faith i had in military juries who arrived at a finding of guilty or not guilty, they felt completely at see when they came to the issue of sentencing. the lack of any standard between the minimum and maximum. as a judge, i had the experience of having seen enough cases to have an internal barometer. nothing more than that. in the absence of standards i don't know if i can articulate the basis in any meaningful way. as far as the ability to review, any system has to have somebody with clemency power to take care of unforeseeable results. what you see at the back end of
11:08 am
a court-martial has no resemblance to what we saw going in and that is an unjust result and somebody has to have power to correct that. >> i will start backwards with clemency. when i sat on the court of appeals, we received assignments of error regularly and i know we occasionally would grant some sort of relief in sentencing. that was rare. some of the language we would use is that is clemency. we are not in position to do clemency. that is not our job. i don't think convening authority should be limited to correcting errors but to grant true clemency and they don't have that ability in most cases
11:09 am
now. the defendant's counsel where traditionally they could go to convening authority and as clemency post trial, that is not much the convening authority can give them in clemency. and it is submitted very quickly, if your argument to the convenient authority, if you only have 10, 20, 30 days, maybe you could argue clemency is a matter of the type of case it was. if it is a posttrial conduct that was good on the part of the offender, there isn't any in the first month of trial. they don't have good conduct to rely on to be good for the government posttrial 10 to 30 days doesn't give a good measure what their assistance might have been.
11:10 am
the power to not only correct any mistakes but also grant pure clemency because that is where the clemency came from. not the appellate court. >> to use kernel glass's analysis, i would rarely comment on what i gave as a sentence. i became more seasoned after 7 or 8 years, on more than one occasion would give those comments, i said on the appellate court, i can recall receiving records of trial going why did the judge save that? it was a bit concerning to be worried what might be evaluated as what i said. if i said something was i going to be challenged in the next case because i made a comment
11:11 am
about why i judged a certain sentence. maybe i should have been more deterred in some of the things i did say but made comments about sentences on location and some of those might have been in cases that didn't reach appellate radio because there was no record. members have no sentencing guidelines. we have no sentencing guidelines. i think we should have sentencing guidelines. saying to members, you can sentence 30 to 50 years or even to a judge, from 0 to 50, where do you come down? i know as a judge i kept the binder of every case i did and every sentence i awarded, and what the charges were so i could look back and see what i had done in prior cases. every case is treated individually but i had a record how i treated other cases too and if there were unusual
11:12 am
sentencing matters i would make a note of that but members don't have that. a prosecutor asking for 20 and defense counsel asking 6 months and they come down wherever they come down and so now in the appellate world you see individuals convicted of sexual assault. some have very great sentences, some have very little sentence. how is that a fair system? how can an offender who may be pleaded guilty, how can he -- why is the system set up so serving 7 years at the guy in the cell next to him is serving two for almost the same exact offense. and sentencing guidelines are appropriate. >> i will ask the panel if you
11:13 am
would indulge us and stay with us a little past 11 but some more questions, we have been talking about the upstream of the process, cases getting referred to courts-martial. i would like to shift a little bit downstream. when presiding is a judge with a member panel, have you been surprised at a verdict that members are acquitting when you would have found somebody guilty particularly when there are issues by alcohol. >> i would say not very often because when you try a judge, you can approach by an entirely different mindset. i really engaged in the idea of what my results would have been because i have so many other things to deal with in instructing the panel and ruling on the evidentiary area objections. i'm not sure it was particularly helpful.
11:14 am
i want to keep my mind open so that nothing came across as slanted in one way or the other, when you are tying a case by a jury your mindset is so different, you don't make the calculation and many times when i talked to members "after words" they would ask if they got it wrong or right and when i went through the process you've got it right. i would say the other thing is member panel do an extraordinary job applying instructions and getting to the right result. there were cases -- the court reporters the better barometer. i asked the court reporter what he or she thought the results would be and usually within 10%
11:15 am
one way or the other. that might be the better barometer but i was really surprised. i was frequently surprised because sentences varied so greatly and because members had so little guidance in that spectrum. >> i will be quick. i can't improve on anything you said. that is my experience exactly. >> i agree with what wes said about how you listen to a case. we have no authority, if it beats the threshold of 917 which is what i'm listening for there have been times with that caveat where i thought wow, how did they get there. i don't know how many. you are talking about very few in what seems like maybe just
11:16 am
because i am aging, hundreds of cases and i would mirror what wes and jeff said, a time when there's usually a point of the sentence, frequently that is to the harshness of the sentence. i was known as a very harsh sentence or and there were times when i would hear a sentence and think wow. on a very few occasions, when they had that authority, it is twice what i would have said differently. that is my observation. >> i agree with kernel glass, in my do leniency in sentences, members don't have any
11:17 am
parameters other than what is being asked for by either side. got completely away from anything any side asked for and that was a surprise but then again they don't know what cases are in our view or prosecutors or the defense counsel works. i know they take their job seriously, and discussed with members afterward their job and what they do and they take their oath very seriously. i had members expressed concern that that was a really tough case. yes it was from all sides. i'm sorry, go ahead. do they get it wrong on a verdict? what what i have done.
11:18 am
what would you have done? it is irrelevant, i didn't think of it from that perspective. >> i have an alibi, one of the greatest strengths of the military justice system is our professional juries and panels. i think they are smart and take their duties seriously, have tremendous experience and my experience has been the vast majority of the time into the 90% they are getting it right. that brings us back to the acquittal. if members are getting it right and i do disagree -- i think
11:19 am
these rates are pretty much unheard of in the civilian system and we brought really difficult cases and had much higher conviction rates. if members are getting it correct 90% of the time that the problem is back upstream if you agree there is a problem. >> the question i were to ask back and the rhetorical question is how long have your prosecutors been doing that? it just matters. when you look at the most experienced prosecutor in the army, it is 5 or 7 years prosecuting cases that is not the way it is in district of attorney's offices and that makes a difference especially with these cases that are almost always but very
11:20 am
frequently dormitory room, the analogy is dormitory rooms, saturday night, a little supervision if any. it is the he said she said or whoever the victim is may not remember. what we are saying is based on what we see coming into the courtroom, the evidence that is developed and presented generally we think they do a good job reconciling some difficult issues and they take it very seriously. almost always -- not the entire panel, the vast majority is college educated, experienced people. the reason i keep banging this drum is ultimately to me this part is not rocket science. this part comes down to when you ask the very hardest cases often without objective
11:21 am
evidence, and it is major jones the experienced prosecutor even what they talk to and you all know this, some of that is just the field. it is a field, the knowledge i have been on so many times arguing this issue, and some of it is the developed people skills to pull those difficult facts out of the victims. i don't think they are on reconcilable. i think they are very reconcilable and going back to the question, they turned down cases, don't want everything to do with this case. the prevailing fact is as good
11:22 am
as these young men and women are, we don't keep them in these positions, they develop that ability to know this is a good case, how you present this evidence. i will give you a quick anecdote because it matters. i have a case where special victims prosecutor tried to introduce what were essentially outcry evidence from a victim. the outcry evidence was putting on the alleged victim, she testifies and says i call my best friend, i was upset and told the whole story. when did you call? things were so crazy i don't remember. we all know there are exceptions.
11:23 am
i have no timeframe so how is it admissible? i don't admit it. it testifies at trial, she says i talked to her the next day. probably this piece, a kind of assault. the experienced special victims prosecutor does not attempt to reintroduce that evidence. when told about it, i didn't know i could do that. it seems to imply that i should have introduce the evidence which seems finger on the scales. that is the difference. some of it is more difficult cases.
11:24 am
it matters what you spend time. >> the difficult decision is what is a healthy acquittal rate. i would submit 0 is unhealthy because we are not taking difficult cases, 80% is unhealthy as well. what is the middle ground, an indication we are taking tough cases but we are not incurring all these costs. there are costs for everybody involved in prosecuting a court-martial. costs to the victim and going through the old process of being interviewed, being cross-examined, costs to facing
11:25 am
court-martial or highest suicide risks, and when i go into the prosecution decision. if you incur these costs what is going to be enough to say it is worth those costs. we start with investigations have to be more thorough, investigators have to file leads, i don't think they always do. there has been a real tendency for investigators to take statements at face value, are going to get harder to explain as the time of trial approaches. better investigations are one thing.
11:26 am
in addition to the trial counsel investigation, ability to read my own handwriting would be helpful. the other would be trust in the people who have prosecutorial discretion going forward. everybody's testimony here today, whether it is the staff judge advocate, we have to trust them. we have to accept they are going to make bad decisions on occasion and sometimes those decisions will get public scrutiny, but that is the cost of any system. there will be bad decisions in any system and over correcting from every bad decision on an anecdotal basis, is in the way to go forward. developing the evidence, we are
11:27 am
telling you, anecdotal of course. going back and looking at the evidence and the data to determine what the next steps are. that is the next approach. >> when you talk about going up the street, i think upstream is even further upstream. a lot of the cases we see as judges, whether we were prosecuting them before, defending them now, a component of alcohol. as i read records of trial, and alcohol is involved in these cases, ended up in some sort of sexual assault situation, i often wonder how is this getting to this point when we are supposed to be training them about the effects of
11:28 am
alcohol and the sexual assault training we give military members and sometimes they come in and i heard from some of the staffers that they would train one drink is enough. we spent a lot of time educating members that that is not the law. the law is not if you have one drink you can't consent. if that was the law, both the offender and the victim should be in court-martial because they were both drinking but we have to do better at that stage whether training military members, intervention, when i see some of these cases i wonder how did we get here and nobody intervene? why did intervene with this girl who was drunk and two males are taking her to a room? where were the supervisors?
11:29 am
the petty officer who saw that? why did nobody intervene? is it working? it might not be, the training we are giving them. when we tell them you can't have one drink and concerns. in my practice we have male offenders say to me, alleged offenders, how come i'm the one facing trial? i drank but so did she? why am i called the perpetrator when i view her as the aggressor? she is the aggressor? why my called the offender? i can't answer that. that seems to be the way the process is set up. most of our offenders that are charged our mail. we need to educate better. >> another question, take a ten
11:30 am
minute break and start lunch at 12:15. >> my question will turn into two questions. the with all the authority i don't have, with assistant members, in the national defense authorization act, congress asks to issue reports on different issues and two issues ask your thoughts on. any thoughts at all are helpful. the first has to do with victim impact statements and the explanatory statement from, conference. the importance of providing survivors of sexual assault an opportunity to provide full and complete description of the impact of the assault on court-martial sentencing hearing this.
11:31 am
some military judges, not retired judges, some military judges, interpreted rcm 1001 c too narrowly limiting what survivors are permitted to say during sentencing in ways that do not fully inform the court of the impact of the crime on the survivor. therefore they ask us to do an assessment and issue and report. with a military judges are showing appropriate deference to victims of crime to exercise their right to be heard at sentencing hearings and permitting other witnesses to testify the impact of the crime. thank you. >> was that both questions?
11:32 am
okay. from my perspective, i have limited victim impact statements according to what the rule requires. i just read the rule, i know i have done it and seen victim impact statements that were very effective, and statements that were rambling and not very effective. i am talking about as an advocate the courtroom i have seen the work very well and not work very well. the writing doesn't usually emailed.
11:33 am
there is not much emotion to it. i guess ultimately the question whether i appropriately limit or whether judges appropriately limit victim impact statements, to me that is an unanswerable question because i don't know what they are talking about. when they are saying the rule means this and judges are interpreting this incorrectly i am not sure what that is. i would say in observing practice, victim impact statements, i'm not sure what congress envisions in terms of the breadth at which they can give a statement as well as allowing them to tell their story, that may or may not be
11:34 am
as helpful as achieving a sentence as they may have been. i would say in terms of the effectiveness of them, back where we had the rule where victims would talk about it. and the statements before me have been similar to the victim impact i heard before sometimes crushing impacts on their lives and ability to trust etc.. all of that is admissible under the court ruled but it was relevant and admissible under the former rule. i apologize, i am struggling to figure out, i know it is not your question. >> limited impact statements before. situations where the victim
11:35 am
impact statement included comments or references to evidence that i previously excluded for being unfairly prejudicial or for some other reason. i have limited that before and i don't think it is inappropriate. there is an instruction, i haven't looked at the bench book, there is an instruction we give the panel about how they should consider the victim impact statement. that is a good instruction. the product of a lot of thoughtful reflection by a lot of judges. i trust everything else that i have done previously as being inadmissible to being appropriately covered by then instruction so members consider that. >> you are vouching for kernel glass, he did it for evidence
11:36 am
that excluded also. >> had to be a reason. >> i can't recall having limited a victim impact statement. the legal counsel has done a very good job preparing those and modifying them and their rulings throughout the proceedings. i can't recall a time i have been in a situation where there was an objection for the victim impact statements. >> i recall making a ruling in some capacity but don't recall what it was. if memory serves me right it had to do with a recommendation for a particular sentence. and i limited it to that and they took that out but i agree with colonel more, they are
11:37 am
doing a pretty good job at helping them prepare. the only concern towards the end of my time on the bench before i retired was the timing of it and when it was provided by the government to have an opportunity to review and sometimes that caused delay because the government was not privy to it until the moment the person was coming in and an opportunity to have a chance to object. i don't recall any significant items that i had the victim extract out. for options to give this statement. >> i have one alibi you are trying to get done. >> my wife told me i should lose weight. >> i want to note the issues i reflect on involve notice as required by the rule. usually that was cured.
11:38 am
i needed a cure with some form of recess. in one instance i recall an overnight recess, nearly the end of the day. the second did involve specific sentences which the case was very clear on, a victim recommending a specific sentence and the third was -- involve members in a matter that had been previously excluded that to reopen would constitute a mini trial. >> thank you very much. the other one as advertised, appointment of guardian ad litem for minor victims. this is from the house side. the committee is concerned for the welfare of minor military dependents were victims of an alleged sex-related offense. the committee acknowledges the department of defense continued efforts to implement services
11:39 am
and support service members who are victims and further to expand some of these services to dependents who are victims but the committee remains concerned that there is not an adequate mechanism within the military court-martial process to represent the best interests of minor victims following an alleged sex-related offense. they asked for a report that evaluates the need for and feasibility of establishing a process under which a guardian ad litem may be appointed to represent the interest of a victim of an alleged sex-related offense for people under 18. need for feasibility of practicality of doing something. any thoughts? >> i realize a guardian ad litem has a different role and special victims counsel but in the cases where i had child
11:40 am
victims the special victims counsel would undertake to assist the custodial parent to assist the child. i have seen that happen before. i think the need is probably a reasonable need. certainly there are times the custodial parent's interests might not dovetail with the child victims interest and i have seen that happen before and in my own mind had to worry about was the child's real interest, personal interest and legal interest taken care of?
11:41 am
i don't know how we would do that. haven't had a lot of time to think about how we would do that in our military justice system. >> let me say in regards to both issues our door is always open. our mailbox is always open. email works so if you have thoughts later on about this, feel free to let us know and we will include it in our records. >> i would echo what jeff said and go a little further. are you going to retain a civilian lawyer or take the legal assistant attorney and teach them to do all of the other thing beyond being guardian ad litem and if it is not them are we then going to
11:42 am
take the prosecutor who has four years of experience and tell them their next career position is to be a guardian ad litem or the defense attorney who ought to be defending the next big case, the problem is in the details, you absolutely could augment your system by having a civilian attorney come in and do this. i don't know that there is -- i don't know. what i started to say is i'm not sure there's enough work to support just one full-time position guardian ad litem, a bigger one like fort bragg or something else. they certainly could do some things junior legal assistant attorney or victims counsel may not have the training to do. what i also observed in the courtroom is the victims counsel are doing their level best and doing the things you want them to do in terms of getting to know the child to the degree those interests compete you don't know what is happening. >> i know in a lot of places
11:43 am
there are nonprofit organizations that provide guardian ad litem services for children. i wonder if there would be a way that the military can come up with a cooperative agreement with some of those organizations in order to work hand-in-hand and even provide funding to help them help us provide that. just a thought that just occurred. >> as you think about this, please let the colonel know if you have further thoughts. i will give us a 10 minute break and then we will work through discussing your testimony which i truly appreciate and we will adjourn for lunch at 12:15. ten minutes but back in seats please. [inaudible conversations]
11:44 am
[inaudible conversations] [inaudible conversations] >> mister sullivan, thank you and good morning. i want to welcome members and everybody in attendance today on valentine's day to the sixteenth public meeting of defense advisory committee on the investigation, prosecution and defense of sexual assault on the armed forces. we will begin by taking attendance.
11:45 am
general anderson. [roll call] [roll call] >> they cannot be in attendance today but we have a quorum for this public meeting. the ipad created by the secretary of defense in 2016 for fiscal year 2015 as amended. our mandate which would bind
11:46 am
the secretary of defense on investigation, prosecution and defense of allegations of sexual assault and other sexual misconduct involving members of the armed forces. the meeting is being transcribed, a complete written transcript will be on the website. we will begin today's meeting with a panel of retired military judges. the committee has not previously had the opportunity to hear the perspective of military judges that presided over sexual assault cases. today's panel we will hear from two retired army judges, a retired navy judge and retired air force judge and the committee looks forward to hearing from each of you. following the military judge's panel the committee will discuss the judge's testimony and take a break for lunch. in the afternoon the committee will deliberate and vote on whether for the annual report and an update from staff in 2020 military installation visits and courts-martial. next, the army chief criminal law colonel patrick will
11:47 am
provide the presentation on fiscal year 2020, that affects military justice. the staff director has informed me an individual has made a request for public comment at today's meeting. you will hear the comment after the presentation. a member of the audience make a public comment, please write your request to the staff director. the comment may be heard at the discretion of the chair in public comments may be submitted at any time for consideration. the ipad staff director will wrap up the meeting and answer any questions the committee may have. thank you all for being here today. we are ready to begin. we have your bios but if you could provide a short description of your military career, the military judicial experience and any training you receive as a military judge.
11:48 am
>> good morning. thank you for this opportunity. my name is bethany o'brien, approximately 9 years on the bench on the trial judiciary and appellate court, prior to becoming a military judge i attended the judge's court from charlottesville. off the bench i attended various training, some focused on sexual assault, other training, scientific evidence, courtroom security and drug cases. during the course of my career i spent five years prosecuting these cases. >> i am colonel westmore. i retired from the united states air force after 9 years, 6 and a half of those on the
11:49 am
trial bench. i served as a judge advocate twice. i served as a prosecutor in this council. >> i am jeff nancy. i retired after 30 years in the army. 25 of those years, was involved in military justice in some form or fashion, more than 13 as a military judge, the training we received included what has already been talked about. the military judge's basic course, at least twice annually, refresher training on various issues of criminal law and military judge business including training at the national judicial college in
11:50 am
reno, nevada. >> i'm andrew glass, 26 years in the army, prosecutor, defense counsel, a trial judge on three different occasions at 3 different locations culminating in a circuit judge with jeff and the military judge's course in charlottesville which is a 3-week course. in between my first time as a judge, a staff judge advocate, made you go back again in terms of sexual assault training in the context of being a judge. i tried to remember when we started doing specialized sexual assault training, typically in august of the year, it is a week long course,
11:51 am
for 5 times, jeff may have a better memory when we would go and have intensive courses discussing sexual assault cases, discussing evidentiary issues and procedural issues that were germane to that and several national judicial college courses, a death penalty case, i was with jeff in some judicial art course. >> sexual assault training started in 2011 or 2012 for judges. >> and moderated panels etc.. >> thank you very much for being here. this country has in the past heard from victims, heard from accused, from victims counsel, and prosecutors and investigators but this is our
11:52 am
first chance to have questions for those who have seen the whole thing put together. i open it up to questions from the committee. i am going to start. what has been your experience with love vlcs nsclcs? has it changed how courts-martial proceeded in your opinion in terms of witness preparedness or surprises seeming to come out for which the complainants have not been prepped? if you could take a moment? >> you don't always have to start with me but thank you. feel free to jump in.
11:53 am
the vlc program really changed sexual assault cases in my view. prior to vlcs being involved, i look back even at my time in prosecuting these cases, it was a free for all against the victim where oftentimes the victim, male or female, seemed to be dragged through the mud. vlcs are protecting them. to i think an extreme now because when i prosecuted cases the victims would come in and testify in article 2. that was a good opportunity as a prosecutor to see how that individual would fare under cross-examination. they don't have that opportunity anymore. most victims will assert their
11:54 am
rights to not come to article 32. unless they come into court, it seems compared for what is going to happen. as a judge, cross-examination often was the opportunity for defense counsel to deck out how they prepared with the prosecution and refused to talk with the defense. that is a disadvantage to the government, to their case of the victim never had that opportunity and refuses to as is their right understandably so, there have been some bad scenarios with article 32 as we know for the victims being cross-examined and i'm using the phrase alleged victim, but in terms of preparation for trial, all they are getting is
11:55 am
the ability to prepare with the government and in some ways that is not doing them a service because they are not having the opportunity for cross-examination at any point or interviews with the defense. i will mention that i now have my own practice. i'm a criminal defense attorney, sexual assault cases are something i defend and it can be difficult on both sides if that opportunity is not there for victim interviews. understanding that it is their right, it would help if, for the process, they would have interviews with counsel on both sides because then it looks as if, i saw this as a judge, they have something to hide. we know they don't in most cases but perhaps they do. i don't know. it seems there was something missing from the process.
11:56 am
an interview with cid or osi they are not asking the tough questions during the investigation. >> can i ask a question? >> the vlcs served a great purpose empowering victims in preparing them for what they are about to face. the process is a difficult process to go through. one of the best things the vlcs do is to very realistically describe what the process is going to be like. and the personality of the individual prosecutor in the case, taking care of the victim but the victim was not the prosecutor's primary concern and the challenges we have seen
11:57 am
from the other testimony we received to provide information. i think everybody is concerned about improving the process, everybody is interested in ensuring the process is fair and equitable and the individuals involved in the process have the skills and ability to do their job and the resources to perform the functions that they need to. some of the information that was discussed about article 32, we have heard different testimony all over the board about who thinks article 32 is valuable and it is not as viable as it could be or should be.
11:58 am
that is an area we had discussions with and concern about and the referral decisions made by command authorities, we heard various degrees of testimony that felt they were strong in supporting that current process and trying to resolve the conflict. there was complete confidence in the ability to do that and yet the other staff that are providing legal information, decision-making process and information, for them to make a decision, typically transferred a lot, don't have a lot of experience, not much training
11:59 am
and you question the basis for the command to not make a good decision but a decision based on facts, circumstances, information that is brought to them. >> with regard to some of the areas we discussed, there was overwhelming support for the idea of a 32 being valuable evidentiary process, a true vetting of the issues is gathered. and the criteria are criteria to consider. but certainly that is _ -- that is underscoring what we think
12:00 pm
of article 32 and supports what we want to be doing. there are a number of things but the only other one i will address right now is the point that was raised with regard to experts and defense experts being a really important area where there has to be independence from the prosecution. .. in addition to some of the things that have been raised and might be reiterating a bit of the comments about the need for a process to support specialized experience trial attorneys to
12:01 pm
stay within the system and to therefore create a true special victims unit. i know -- within the military justice system. trial -- prosecutors are truly able to bring a breadth of experience along with the training and expertise they may receive and to be rewarded or at least not to be penalized from a career perspective or to be moved around for the needs of the military to really support people staying in the decision. because although there was not consensus come i've heard enough of it that was very credible to me. the second piece about investigations, i think much like the article 32 perhaps, through investigator training, there has been not been enough nuance training to help people understand how to be victim centered while still thoughtfully and thoroughly
12:02 pm
fleshing out and interview and following up on things that may be truly inconsistent or may appear that way, asking follow-up questions in a way that is consistent with good investigations without brushing a victim or abusing them. -- barrage. >> so i won't reiterate but i agree with most of what's been said. colonel nance i thought had positive and good questions back to us, during the 32 discussion it was asked what is a is the purpose, which i know we're talking about and determine the story changes are made, what is the purpose? is it to get -- paraphrase, get more convictions or to pull back the curtain or exactly what is the purpose? so before recommendations are
12:03 pm
made, i think it's a good reminder to us as a committee and other future committees that always being at a meta-level of what's the purpose of this in the grander analysis of military justice and keeping that in mind. i wanted to flag that because i thought it was a positive answer. the other thing so dislike is the experts, very interesting idea and one that is happening some civilian courts what you think is interesting, the recommendation explicitly articulated by one of the judges about sentencing guidelines, is something that i think is maybe not on our new horizon and agenda but i know there's a lot, something to consider. and then there was consistency at least in what i heard that the -- they're doing a good job overall in what the job is, which is to help the victim and protect the victim, even though
12:04 pm
that might make the system less smooth at times but it was articulated by all of them they seem to be doing their jobs well, which is to protect the rights of the victim. i didn't want to lose that because in the commentary there with some that it couldn't slow down the system. there is also always the note that they are doing their job. it's important to both of those pieces of that. >> one of the things that the four of them emphasize is that the services take cases to trial that the civilian world wouldn't. i think they said that a number of times. the question i have is, and that they didn't really answer, i don't think, is why is that? is it because they are referring cases to court-martial using a
12:05 pm
probable cause standard? which many civilian prosecutors offices would not do, especially in the arena of sexual assault. they would you something approaching a proof beyond a reasonable doubt standard before they would take the case to trial. i know in los angeles that was their explicit standard in sexual assault cases and they would not refer the case or take the case to trial unless there was some type of corroboration of the victim allegations. that's an interesting question is, you know, why might the services be taking cases to trial that the civilian world wouldn't? they sort of danced around it a bit with the talk about some sort of political pressure to prosecute these cases. the other thing that struck me,
12:06 pm
and we kind of rent at a time or i would've asked of them is, the analysis of the yearly data shows that the acquittal rate is much higher for cases that are tried by a panel of members than it is by judges. and yet the judges said that they felt that the panel members were making appropriate decisions, which there's a a little bit of disconnected there although one question that we might ask is, are different kinds of cases going before a panel of members as opposed to going before a judge only? that might be something we can tease out as we start looking at some of the data. >> very interesting to see in the cases that we have documented, that alcohol is a factor. are those more likely to go before a panel of members or are
12:07 pm
they more likely to go before a judge? i just don't know the answer but i bet we can find out. >> i i don't have much to add. i agree regarding the comments about experts, that need to be resourced. i think across the defense, prosecution and the court to have access experts to i was struck by one of the judges who commented that they're trying to read the dsm and understand medical information in a victim's file, to me that's a recipe for air, i think. i think the experts is really important. the second one is i was run when the sentencing guidelines were initially impose in the federal courts. i was working in the second circuit at the time and of the great deal of resistance amongst the judges, which overtime subsided a bit but the fact of the matter was it was a huge disparity in sentencing.
12:08 pm
then you add the fact that the panel are tasked with making, imposing -- that imposing a sentence but certainly recommended a sentence. another level what is going to be a lot of opportunities for a great range of punishment, and so i think that something to consider very seriously is sentencing guidelines or something may be softer than the original version of the sensing guidelines for something that provide more guidance to a panel that here's the max and here's the minimum, take something in that range. >> i will try not to reiterate although i think i read something recently about disagreement about whether sentencing guidelines are too high in certain cases. but -- [laughing] in any event, and --
12:09 pm
[inaudible] i was actually -- couple of things. we still can't seem to get an answer why the acquittal rate is so high compared to the acquittal rate in civilian courts on that only sexual assault cases but any type of cases. i can't understand why we can't get a better answer on just we take cases that civilians wouldn't take. i don't know how we would compare that to begin with, but it's troubling that we can't seem to get an answer to that. that alcohol thing is also very troubling, although i had to say they give them train and they talked about that. the same thing goes on at college campuses. they give them training about that, and routinely call is involved in many sexual assault cases on college campuses -- alcohol is involved.
12:10 pm
that one is very troubling but are not sure if any answer to that at all. just a fact of life. the final fling, the sentencing, they all seem to agree it's a very bad idea to give reasons for sentences. i would've thought just the opposite both for the victim and for the defendant, that it seems to be important to give reasons for why the sentence be imposed is being imposed. so that just kind of was -- without getting into the whole discussion about whether sentencing guidelines are appropriate, which i have strong feelings about. it just seems to me it would get both parties some kind of idea of why. >> just a quick comment. that was in my notes also about
12:11 pm
that every single judge, i believe all four comments they did want to put the reasons on the record. and the reason they gave was about appellate review and maybe not think something they shouldn't say, which flagged in my brain training moments to understand permissibility but also the sentencing guidelines, understand range. but if if you think about procedural justice, the more transparency there is at every step of the process, the more the accused and the victim as most of the other system actors can understand and have faith in the system. and so i found those comments while understandable also a little disturbing through procedural justice lens. >> i would be curious to follow up on the pilot program that was
12:12 pm
pointed out by colonel glass, when we were discussing staying in your position as the prosecutor or a defense attorney, and somehow or is a program going on, a pilot program in the army. i'm not familiar with that. maybe someone here is, but i bui would like to know more about that program. the other question that came up with regard to preliminary hearings and going toward the usefulness of them today, is how often is a 32 waived by the defense, as being unhelpful in any way? so i would be curious about that statistic. >> i think we gathered that data. i don't know it off the top of my head but we have it. >> if i may on the 32, also this might be a transcript question for later, but weather seems to
12:13 pm
be consistency, depending on the purpose, a more robust 32 32 tt involve some i believe evidentiary, i didn't hear any of them articulating a return to the previous 32. in fact, happily they believe they all said the opposite of that and included that they were not asking for the cross-examination and at least heard one of the judges say that. it's about what i heard and i would like to look back to the transcript of it, but it's about ensuring defense can get witnesses in the room, other witnesses potential and of testimony but perhaps not a return to the victim being in the space. >> i have a comment. >> and i have one after her.
12:14 pm
>> i will go first, judge grimm. >> please, please, please. >> okay. i agree that mr. kramer, that we need to get behind this alleged notion that the military is taking cases that the civilians are not. i heard from the judges today characterize what are considered hard cases, but i think we need to determine is that military characterizes cases as hard because of the facts or because they don't have a prosecution standard that civilian prosecutors have? so by way of example, many assistant united states attorneys are taking to trial what they could characterize as hard cases involving sexual assault.
12:15 pm
for example, sexual assault on airplanes in flight, , sex trafficking cases, child exploitation cases, but we still take them to trial because prosecutable decision-making and the department of justice are evidence driven. i was primarily struck by the comment that the prosecution standard in the military and civilian systems are, i believe he said dramatically different and sometimes he finds himself say why are we here? if we are here, and something was really wrong with the case or you didn't really consider that this case should be in the insight of the courtroom. and then colonel nance followed on by saying we have to look in terms of what is being the military purpose? and perhaps that's a higher standard produce the number of bad cases and acquittals. i think this is so important and
12:16 pm
i think we need to keep examining this. >> judge grimm? >> thank you. i had some very specific comments but it want to start off by thanking the judges for their time. they made me feel very proud that the military could attract people of their dedication and the thoughtfulness and service i wanted to just express that. a couple of observations. number one, standard for bring the case to trial. i agree with ms. tokash and the others have commented about that. this is critical. the standard that requires admissible evidence, sufficient to move forward seems to me to be a essential clarification that we should consider and explore, number one. number two, a sentencing standard. what i heard was a reluctance on
12:17 pm
the part of some of our distinguished panelists to rush into an area and express of you without a standard. and if there was a standard, that that could govern. my thoughts are it is essential to have a standard or a sense that is impose. i share the concern about the guidelines approach that there should be a standard, and every seconds whether recommended by a panel or a judge should meet that standard. i think it is essential as one of our colleagues said, transparency, to explain what the reason is. to simply have, go from nothing, a reprimand up to 30 years with no explanation seems to me to be disruptive for the system and to invite criticism about the
12:18 pm
transparency, the consistency of the system. and to the ultimate detriment of the phenomenal efforts that the milk has made to try to get its arms around this issue. experience of attorneys, that is an important factor. i don't know how, i think would be tremendous pushback by certain areas in the military to have more prosecutors but these are career prosecutors, regards the standards and if you make the standard, admissible of evidence it highlights we need deep with expense to be able to do it. it advantages no one to inexperienced folks do this because it's not fair for the victim or for the defendant, , e accused. it's not fair for the military. experts, something needs to be done to get equal access to experts, to governments and to defense and to the court were needed without going through
12:19 pm
some cadre of the characters who view this as nothing more than a long and demanding process to justify it. alcohol seems to be an enormously significant factor which surprise no one as mr. kramer said because we have a phenomenally large population of young people in that same demographic, which is college kids, where, who not only -- [inaudible] some of information i heard from sources outside this panel, this group at in our committee where binge drinking is not just simply a phenomenon but it is a goal, drink for the purpose of becoming so under the influence that you don't know what's going on, and that's a phenomenon for the specific age group, and it's a real problem because so much
12:20 pm
of this concludes our call. when alcohol is involved it makes it more difficult as to whose version you believe. and i think the guardian is an interesting idea but i will tell you in the federal system where the statute allowing for a guardian ad litem but there is no funding. if you're going to require it, you have to have funding, otherwise all you're doing is creating an expectation that cannot be fulfilled. >> thank you. >> very briefly, just on the connection rates, because this is an area that we are steeped deep end, i really want to say it is certainly an area to spend time to look into, but there is no comprehensive evidence that exists shows the civilian rate is much worse than what we're talking about here. at between 600 jurisdictions,
12:21 pm
each one of them, has a different rate of prosecution and a different number of cases going forward. we cannot look to the u.s. attorney's office. they simply do not do these cases. they don't handle the same cases that state and local do with the same volume and they don't have jurisdiction to do it. a few that they do, i mean, sex trafficking as well, i think one of the challenges when we work with them is just knowing that they are prosecuting all of the cases that exist. but i think this is one of the big questions across our country, not only what is the actual rate of convictions but how do we measure like case to like case, and i think there's ways of doing it but we haven't done it yet. i think people think know what the commission rate is, but when you look at the data, i don't think it's what they think that it is. so i just would like to caution us to mark this as this is somo look into and try and make the
12:22 pm
comparison. >> just one thing. >> very, very briefly. >> i agree at a depends on whether you calculate convictions based on reports are based -- in the civilian world, based on arrest or based on cases that are taken to trial. in los angeles, i just pulled up our data, there were five acquittals out of 5000 cases. 5000 reports. five acquittals out of 5000 reports. there were only 600 arrests out of 5000 -- [inaudible] how many were tried ask well, i don't know how many were tried because some of them fled -- [inaudible] 390 were convicted 390. [inaudible] >> it's been somewhat your denominate is.
12:23 pm
>> right, but you do care about that denominator, what is happening. what was the big number again? >> 5031. >> so does that mean for thousand of them are false? that's the question with to get. this panel can do it or the smart people but you have to get there first before we start doing it. sorry, jeff. >> back at 1:00. -- sorry, chair. [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]
12:24 pm
[inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations]
12:25 pm
[inaudible conversations] [inaudible conversations] the defense advisory committee demo give it on sexual assaults in the military is taking a lunch break now. they are expected back around 1 p.m. eastern. the focus will shift to the draft report they are working on. we should hear a lot of discussion that should last until 3:45 p.m. eastern. more live coverage from arlington, virginia, when the
12:26 pm
meeting presumes here on c-span2. we have more like programming come up short with a discussion on african-american history from 1776 to present day. the event is hosted by the whitsun center in washington, d.c. watch live at 12:30 p.m. eastern on c-span3 come on by the c-span.org or listen live on the free c-span radio app. later live coverage of army secretary ryan mccarthy who speaking today at the national press club in washington, d.c. we will have that live starting at 1 p.m. eastern on our companion network c-span. >> this we can rely from the savannah book festival beginning saturday at 9 a.m. eastern. our coverage includes editor of the american scholar robert wilson on the life of 19th century showmen pt barnum.
12:27 pm
>> the savanna book festival live saturday at 90 eastern. watch our live coverage of the tucson festival of books next month on booktv on c-span2. >> hollow campaign 2020 to nevada this weekend. saturday night live at 11 p.m. eastern democratic presidential candidate joe biden, pete buttigieg, senator amy klobuchar, tom steyer, senator bernie sanders and senator
12:28 pm
elizabeth warren speak before clark county democrats. on sunday live at 5 p.m. eastern jill biden, pete buttigieg, senator amy klobuchar and tom steyer speak at a forum on infrastructure. live coverage on c-span. i joined event at c-span.org and listen and listen on the go on the c-span radio app. >> joining us from new york city is copresident and ceo carol jenkins joining us to talk with us about era and efforts to revive the era at and passing , equal rights amendment. give our viewers a brief history of its passage and why its current now. >> well, thanks so much for having me again. i love coming under program to talk with you and your viewers about this extremely essential amendment that we need to

5 Views

info Stream Only

Uploaded by TV Archive on